Kessler v. Deutsch

Appellate Terms of the Supreme Court of New York

Kessler v. Deutsch

44 Misc. 209, 88 N.Y.S. 846

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1904

StatusPublished

This text of 44 Misc. 209 (Kessler v. Deutsch) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kessler v. Deutsch, 44 Misc. 209, 88 N.Y.S. 846 (N.Y. Ct. App. 1904).

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Opinion

Freedman, P. J.

The action was brought to recover damages for an assault and battery upon the plaintiff by the defendants’ servant who with others attempted to remove some property, from the plaintiff’s premises, which he had purchased from the defendants on the instalment plan. Ever since Mott v. Consumers’ Ice Co., 73 N. Y. 543, it is true, [210]*210the rule-has heen well settled and enforced in a number of cases that for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the ’act be done negligently, wantonly or even willfully. /But in every case the burden of proof is' upon the plaintiff to establish by a preponderance of evidence that the servant acted within the general scope of his authority. Apparent authority is not enough. McGrath v. Michaels, 80 App. Div. 458. The-case at bar is in its essential features identical with Feneran v. Singer Mfg. Co., 20 App. Div. 574, and under the decision of that case the evidence in the present case.was insufficient to authorize the submission of the issues to the jury...

Judgment reversed and new trial ordered, with costs to appellants to abide the event.

Truax and Scott, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

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Freedman, P. J.

The action was brought to recover damages for an assault and battery upon the plaintiff by the defendants’ servant who with others attempted to remove some property, from the plaintiff’s premises, which he had purchased from the defendants on the instalment plan. Ever since Mott v. Consumers’ Ice Co., 73 N. Y. 543, it is true, [210]*210the rule-has heen well settled and enforced in a number of cases that for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the ’act be done negligently, wantonly or even willfully. /But in every case the burden of proof is' upon the plaintiff to establish by a preponderance of evidence that the servant acted within the general scope of his authority. Apparent authority is not enough. McGrath v. Michaels, 80 App. Div. 458. The-case at bar is in its essential features identical with Feneran v. Singer Mfg. Co., 20 App. Div. 574, and under the decision of that case the evidence in the present case.was insufficient to authorize the submission of the issues to the jury...

Judgment reversed and new trial ordered, with costs to appellants to abide the event.

Truax and Scott, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

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44 Misc. 209, 88 N.Y.S. 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-deutsch-nyappterm-1904.

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