Opinion
December 18, 1931.
Appeal from Supreme Court of New York County.
Henry J. Shields of counsel [ Louis Diamant and J. Joseph Lilly with him on the brief; Arthur J.W. Hilly, Corporation Counsel], for the appellants.
Simon S. Nessim, for the respondent.
Present — FINCH, P.J., McAVOY, MARTIN, O'MALLEY and TOWNLEY, JJ.; MARTIN, J., concurs in result.
The complaint alleges that while in the course of his duties as employee of the city of New York, the defendant Morris Cohen negligently and recklessly threw the plaintiff over a railing. Defendant Cohen was a gymnasium and playground director at Mt. Morris Park. The infant plaintiff, thirteen years old, was being ejected from the park for fighting with another boy. When the plaintiff reached the railing of the playground, the testimony is that Cohen picked him up and threw him over the railing on to a cement pavement. As a result of this, plaintiff sustained a Potts fracture.
The city of New York is responsible for the act of a servant within the general scope of his employment while engaged in its business and done with a view to the furtherance of that business. ( Mott v. Consumers' Ice Co., 73 N.Y. 543.) On the testimony in the present case, it was a question of fact whether the defendant Cohen was acting within the scope of his employment. ( Girvin v. N.Y.C. H.R.R.R. Co., 166 N.Y. 289; Sharp v. Erie R.R. Co., 184 id. 100.)
The jury brought in a verdict in favor of the defendant Cohen and against the city of New York. Since the case against the city of New York is based on the negligence of the defendant Cohen, "this verdict of course was inconsistent and absurd." ( Pangburn v. Buick Motor Company, 211 N.Y. 228, 231.) It was, therefore, proper to set aside the verdict in favor of Cohen, but the verdict against the city of New York should also have been set aside and a new trial ordered.
The order setting aside the verdict in favor of defendant Cohen should be affirmed, with costs to plaintiff, respondent, and the judgment against the city of New York reversed and a new trial ordered, with costs to appellant city of New York to abide the event.
Order setting aside verdict in favor of defendant Morris Cohen affirmed, with costs to respondent; judgment against the city of New York reversed and a new trial ordered, with costs to the said appellant to abide the event.