Phillips v. Rosenthal-Romagnoli Co. — 155 N.Y.S. 175

Majority

p. 175

PHILLIPS v. ROSENTHAL-ROMAGNOLI CO., Inc.

(No. 7692.)

(Supreme Court, Appellate Division, First Department.

October 22, 1915.)

Headnote

Master and Servant <§=>329—Assault by Servant—Complaint.

In an action against a master for an assault by a servant, a complaint which fails to allege that the assault was committed in the course of the servant’s employment, or in pursuance of the master’s authority, or while acting in Ms interest, is fatally defective.

[E'd. Note.—-For other cases, see Master and Servant, Cent. Dig. §§ 1268, 1269; Dec. Dig. <§=>329.]

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Appeal from Special Term, Bronx County.

Action by Philip Phillips against the Rosenthal-Romagnoli Company, Incorporated. From an order denying its motion for judgment on the pleadings, defendant appeals. Reversed, with leave to plaintiff to amend.

Argued before INGRAHAM, P. J„ and McLAUGHLIN, RAUGHEIN, CLARKE, and SCOTT, JJ.

Anthony J. Romagna, of New York City, for appellant.

Isaac A. Hourwich, for respondent.

We think that this complaint is insufficient. There is no allegation that the assault was committed in the course of the servant’s employment, or in pursuance of any authority given by the defendant, or while the servant was acting in the defendant’s interest.

The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion for judgment on the pleadings granted, with $10 costs, with leave to the plaintiff to serve an amended complaint within 20 days, on payment of costs in this court and in the court below. Order filed.