Mulligan v. New York & Rockaway Beach Railroad — 39 N.Y. St. Rep. 20

Majority

p. 20

John J. Mulligan, Resp’t, v. The New York & Rockaway Beach R. Co. et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Master and servant—When liable for servant’s torts.

Plaintiff was a passenger on defendant’s road; lie"paid his fare with a five dollar bill, received his change and passed out upon the platform., The defendant’s ticket agent came upon the platform and wrongfully charged the former with passing a counterfeit bill, and procured his arrest. Held, that the defendant was liable.

Appeal from a judgment entered on the 7th day of June, 1890, upon a verdict rendered at Kings county circuit, in favor of plaintiff, and from an order denying a new trial on the minutes.

Hinsdale & Sprague, for appl’ts; Charles J. Patterson, for resp’t.

—The plaintiff was a passenger on the defendant’s road. He had paid his fare and passed out upon the platform to take the train. He paid his fare with a five dollar bill and had received the change. The defendant’s ticket agent, who had received the bill, and while the plaintiff was upon the platform, charged the plaintiff with passing upon him a counterfeit* bill, and directed and procured the arrest of the plaintiff therefor. The charge failed because the bill was good. ■ The defendant is liable. The ticket agent was acting directly within the lines of his duty to the defendant. He was to take good money only and passengers were to give good money only. If a fraud was committed upon him by the passengers, the agent was acting for defendant in his attempt to prevent and punish such offenses. This liability of the defendant for his act is established in the case of Lynch v. Metropolitan El. R. R. Co., 90 N. Y., 77 .

It is no answer to the claim of the plaintiff to say that the agent had no authority to cause the arrest. He attempted to per-' form a duty which he believed to be within the scope of his employment, and which was manifestly for the interest of the railroad company, which employed him. •

The ticket agent’s act was a willful one, under the case of Stewart v. Brooklyn, etc., B. B. Co., 90 N. Y., 588 .

The arrest was a trespass; it was made without a warrant, and the justification which would be furnished by proof of a criminal act failed before the magistrate. The arrest was, therefore, a wholly unjustifiable assault on the passenger. Davis v. American Society, 75 N. Y., 652 ; Burns v. Erben, 40 id., 465.

The damages are not excessive. The arrest was publicly made in a crowd of people and upon a public charge of felony. The

p. 21

plaintiff was taken a mile through the streets of Brooklyn to the Seventeenth precinct station house. There was finally quite a crowd who followed the prisoner to the station house. There his imiocencé was made plain and he was discharged. There could scarcely be be a greater indignity put upon an innocent man. The jury were very moderate in their view of the damages.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.