Mack v. Brooklyn City Railroad

231 A.D. 754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1930
• Status: Published

Opinion

Judgment dismissing complaint at the close of plaintiff’s case affirmed, with costs. The relation of passenger and carrier had ceased at the time of the assault. Lazansky, P. J., Kapper, Hagarty and Seudder, JJ., concur; Carswell, J., dissents and votes for reversal and a new trial, with the following memorandum: The conductor’s threat, “ I will get the fare out of you anyway,” and his later statement, “ Now I am going to get the nickel out of you, anyway,” made at the time he delivered the blow (folios 98-100), were sufficient to raise an issue on the question whether or not at the time of the assault he was acting as defendant’s agent; that is, whether or not on the latter occasion, while he was off the car, he was engaged in attempting to enforce his earlier declaration, made while on the ear, for and on behalf of the defendant and in furtherance of the branch of its business intrusted to him by defendant in its dealings with the plaintiff.