#### Frank Baylis, an Infant, Resp’t, *v.*The Schwalbach Cycle Co., App’lt.

*(City Court of Brooklyn, General Term,*

*Filed June 22, 1891.)*

1. Assault—Liability of cobpobatiohs fob acts of employes.

When the employe of a corporation, in the discharge of his duties, *493makes a mistake and exceeds his powers, the corporation is liable if he acts within the line of his duty.

2. Same.

Defendant let a tricycle for a specified time to one D., and the same was returned some hours later by plaintiff. One S., who was at the store of defendant, told plaintiff to go in and sit down, and then demanded payment for the use of the tricycle and detailed plaintiff until the same was paid. While so detained plaintiff , was struck and kicked by S. several times. *Held,*in the absence of proof to the contrary, that S. was in charge of defendant’s store; that he was acting in the line of his duty, and while doing so overstepped his authority, and that defendant was liable.

Appeal from judgment in favor of plaintiff, entered upon ver•dict, and from order denying motion for a new trial.

Action for assault.

*A. Simis, Jr.,*for resp’t; *Dailey &*Bell, for app’lt.

Clement, Ch. J.

On July 20, 1890, Walter C. Denike hired a tricycle from the defendant at its store in Bedford avenue for one hour. The charge was one dollar, and Denike paid on account sixty cents. He turned over the machine, after using it for fifty minutes, to one Kingston, who rode upon it to Coney Island, and he then turned it over to plaintiff, who took it back to the -.store of defendant. When plaintiff reached the store he met Alexander Schwalbach on the sidewalk, who told plaintiff to go inside of the store and sit down. Schwalbach demanded four dollars and fifteen cents of the plaintiff for the use of the cycle, and would not allow him to leave the store until it was paid. The plaintiff paid two dollars and fifteen cents, which was all the money he had, and afterwards his father paid the balance, two dollars. While plaintiff was detained, Schwalbach struck plaintiff a dozen times, and kicked him. When the father arrived, the plaintiff's nose was bleeding and his face was bruised. It was admitted in the answer that Schwalbach was in the employ of the defendant, but there was no direct testimony as to his duties. The defendant offered no testimony at the trial.

It would appear, by inference from the case, that Schwalbach was in charge of the store of the defendant when the plaintiff returned the machine, and had a right to demand of the plaintiff pay for its use. The fact that the plaintiff did not hire the cycle would not prevent the defendant from collecting a charge for its use, certainly for the time that the plaintiff did use it. It follows that Schwalbach, while in charge of the store, in endeavoring to collect money due the defendant, detained the debtor, and while so detained brutally assaulted him.

Corporations act by their officers and employes, and when an employe in the discharge of his duties makes a mistake, and exceeds his powers, the employer is liable, if he acts in the line of his duty. In this case the employe received four dollars and fifteen cents, and the presumption is that" he turned over the money to the defendant. In other words, the defendant has received the money which was extorted from the plaintiff, and its officers were not called to prove that the same was received without their knowledge as to the method of collection, or to *494prove that the defendant offered to return the money when knowledge came to them.

We think the plaintiff made out a case which, unexplained, required the submission of the same to the jury. In *Lynch*v. *The Metropolitan R. R. Co.,*90 N. Y., 77, 86, Judge Earl says: “It matters not that he exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not. authorized to do, so long as he acted in the line of his duty or, being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that-service.” It is true in that case that the employe was authorized to detain a passenger until he gave up his ticket, but he was not authorized to arrest or to make a complaint at the police,station. In the case before us the employe was authorized to collect money for his employer, in its place of business, and while so doing overstepped his authority. He collected the money and paid the same to his employer, the defendant, without objection on the part of its officers to the method of collection.

Judgment and order denying new trial affirmed, with costs.

Osborne, J., concurs.