Osipoff v. City of New York

Appellate Division of the Supreme Court of New York

Osipoff v. City of New York

260 A.D. 653, 23 N.Y.S.2d 481, 1940 N.Y. App. Div. LEXIS 4680

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 25, 1940

StatusPublished

This text of 260 A.D. 653 (Osipoff v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Osipoff v. City of New York, 260 A.D. 653, 23 N.Y.S.2d 481, 1940 N.Y. App. Div. LEXIS 4680 (N.Y. Ct. App. 1940).

Pincite

Opinion

Per Curiam.

Action brought by plaintiff, who operated a truck upon a public highway, a part of the pavement of which had been repaired by the defendant municipality. The debris from the repairs was being removed from the site by the city, whose laborers were shoveling the debris into a city truck, when the plaintiff, with his truck, was desirous of passing the site, which was obstructed by the city truck and otherwise. Plaintiff was assaulted with a shovel by one of the city’s laborers, who was temporarily in charge of the others, and was seriously injured. Upon the trial of the issues before the court and a jury a verdict was rendered in plaintiff’s favor against the defendant municipality and the laborer, Vincent Sisto, the active tort feasor. From a judgment entered on that verdict defendants appeal.

As far as the municipality is concerned, no question of fact relating to liability is disclosed in the record. As matter of law, the city is not liable for the assault committed by its employee, Sisto, upon the plaintiff, as the same was not committed within the scope of Sisto’s authority as employee. (Mott v. Consumers’ [654]*654Ice Co., 73 N. Y. 543, 547, 548; Muller v. Hillenbrand, 227 id. 448; Zucker v. Lannin Realty Co., Inc., 217 App. Div. 487; Restatement, Agency, § 245, comment d, illustration 8.)

As to defendant Vincent Sisto, the judgment should be affirmed, with costs.

As to defendant The City of New York, the judgment should be reversed on the law, with costs, and the complaint dismissed on the law, with costs.

Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

As to defendant Vincent Sisto, the judgment is unanimously affirmed, with costs.

As to defendant The City of New York, the judgment is reversed on the law, with costs, and the complaint dismissed on the law, with costs.

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Per Curiam.

Action brought by plaintiff, who operated a truck upon a public highway, a part of the pavement of which had been repaired by the defendant municipality. The debris from the repairs was being removed from the site by the city, whose laborers were shoveling the debris into a city truck, when the plaintiff, with his truck, was desirous of passing the site, which was obstructed by the city truck and otherwise. Plaintiff was assaulted with a shovel by one of the city’s laborers, who was temporarily in charge of the others, and was seriously injured. Upon the trial of the issues before the court and a jury a verdict was rendered in plaintiff’s favor against the defendant municipality and the laborer, Vincent Sisto, the active tort feasor. From a judgment entered on that verdict defendants appeal.

As far as the municipality is concerned, no question of fact relating to liability is disclosed in the record. As matter of law, the city is not liable for the assault committed by its employee, Sisto, upon the plaintiff, as the same was not committed within the scope of Sisto’s authority as employee. (Mott v. Consumers’ [654]*654Ice Co., 73 N. Y. 543, 547, 548; Muller v. Hillenbrand, 227 id. 448; Zucker v. Lannin Realty Co., Inc., 217 App. Div. 487; Restatement, Agency, § 245, comment d, illustration 8.)

As to defendant Vincent Sisto, the judgment should be affirmed, with costs.

As to defendant The City of New York, the judgment should be reversed on the law, with costs, and the complaint dismissed on the law, with costs.

Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

As to defendant Vincent Sisto, the judgment is unanimously affirmed, with costs.

As to defendant The City of New York, the judgment is reversed on the law, with costs, and the complaint dismissed on the law, with costs.

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Bluebook (online)

260 A.D. 653, 23 N.Y.S.2d 481, 1940 N.Y. App. Div. LEXIS 4680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osipoff-v-city-of-new-york-nyappdiv-1940.

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