#### SCOTT v. MAYOR, ETC., OF CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department.

March 11, 1898.)

1. Dismissal of Complaint on Opening of Counsel.

Where a complaint is dismissed on the opening of counsel, all the facts alleged in the complaint, and also those referred to in the opinion, should he considered, even though they are not stated in the complaint, unless they are objected to on the specific ground that they are not admissible under the pleadings.

2. Municipal Corporations—Liability for Acts of Agents.

The .duty imposed on a city of keeping the highways free from incumbrances is in its nature private, and the persons employed to perform it are the agents of the corporation in its private capacity; and, for .their acts while so engaged, the corporation is liable civiliter precisely to the extent that any other master is liable for the acts of his servants while employed in his business.

3. Same.

In such a case the city is liable for the acts of its agents, within the scope of their employment, even though, as a matter of fact, they are mistaken in their judgment.

4. Same—Scope of Employment.

-Certain employes of defendant, a municipal corporation, were directed to remove certain trunks and bags from a sidewalk, where they constituted an incumbrance, which it was the duty of the city to remove, and to carry them to the corporation yard for retention for the purpose of redemption under the city ordinances. Acting solely on a reasonable and honest, but erroneous, belief that a bag held by plaintiff was one of those they had takes *192in custody, they undertook to take it from him, and, in so doing, inflicted injuries. *Held,*that plaintiff was entitled to damages therefor.

Appeal from trial term, New York county.

Action by William Scott, an infant, by Ms guardian ad litem, against •the mayor, aldermen, and commonalty of the city of New York. From .a judgment entered on a dismissal of the complaint, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, PATTERSON, and O’BRIEN, JJ.

. Elmer S. White, for appellant.

Theodore Connoly, for respondent.

RUMSEY, J.

The action was brought to recover damages for injuries inflicted upon the plaintiff by two persons in the employ of the ■department of public works in the bureau of incumbrances. Upon the trial the complaint was dismissed, and an appeal is taken from the judgment entered upon that dismissal. Where a complaint is dismissed on the opening of the counsel, all the facts alleged in the complaint and those referred to in the opening should be considered, even .although they are not stated in the complaint, unless they are objected to upon the specific ground .that they are not admissible under the pleadings. Clews v. Association, 105 N. Y. 398, 11 N. E. 814. The facts thus stated and alleged are substantially as follows: The plaintiff was in the employ of one Doyle at No. 2 Vesey street, in the city of New York. In front of No. 1 Vesey street, which seems to be nest door to No. 2, and not on the opposite side of the street, certain traveling bags and trunks had been set out for show upon the sidewalk, in such a way as-to be an incumbrance on the street. The two men who inflicted the injuries upon the plaintiff were sent by the superintendent •of the bureau of incumbrances, as it was his duty to do, to remove these articles incumbering the sidewalk. While they were thus engaged, the plaintiff was directed by his employer to take a leather traveling bag from his store to the factory, to be repaired. That bag re.sembled those which the two men were removing from in front of No. 1 Vesey street. The plaintiff took the bag, and left the store upon his errand. He was observed by the two men as they were engaged in removing the property, and they had reason to believe, and did believe, that the bag he was carrying off was one of those they had just removed from the front of the store. Under that belief, they undertook to take the bag from him by force, and, while they were ■so engaged, Scott received the injuries of which he complains in this •action. In endeavoring to take this bag from him, these men had no private grudge or malice against him, 'and they had no intention of inflicting any willful injuries upon him, but they acted only in the belief that he was trying to take away a bag which they had just removed from the sidewalk, and which they supposed it was their duty to guard..

Upon this state of facts, the questions presented are, in. the first place, what was the nature of the duty imposed upon the two men in *193removing the incumbrances? and, in the second place, were they, when they inflicted the injuries upon the plaintiff, acting within the scope of the duties which they were set to do, or had they reason to believe they were so acting? That these bags and trunks were an incumbrance upon the highway must be conceded, ii is the duty of the municipal corporation to see to it that no obstructions or incumbrances are permitted to remain upon the highway, and it is responsible for any injury which may happen because of its failure to perform its duty. Turner v. City of Newburgh, 109 N. Y. 301, 16 N. E. 344. The duty is not a public one, such as that which rests upon a police officer to make an arrest, or upon the keeper of a prison to properly control it; but it is in its nature private, and the persons performing it are the agents of the corporation upon which the duty is imposed in its private capacity; and these agents are not public officers, engaged in a public duty, and for their acts while so engaged the corporation is liable precisely to the extent that any other master is liable for the acts of his servants while engaged in his business. Conrad v. Trustees, 16 N. Y. 158; Weet v. Trustees, Id. 161, note; Maxmilian v. Mayor, etc., 62 N. Y. 160, 169, 170; Ehrgott v. Mayor, etc., 96 N. Y. 264; Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. 473. In the two cases reported in 16 N. Y., the nature and origin of the duty imposed upon municipal corporations in the management and control of the highways are thoroughly examined, and the conclusion reached that the officers of the corporation, while engaged in duties of that nature, are agents of the corporation, and for their neglect or default the corporation is liable. The distinction between that class of duties and those duties of a public nature as to which the officers of a corporation act in their public capacity, and for which the corporation is not responsible, is considered in the case of Maxmilian v. Mayor, etc., supra, in the pages cited above. The distinction is well settled, and is thoroughly established, and is relied upon as the basis upon which the liability of the corporation is founded in many cases. When an incumbrance exists which it is the duty of the corporation to remove, the existence of the duty and the liability of the corporation for its performance are not at all affected by the nature or extent of the incumbrance or obstruction. Whatever the incumbrance may be, it is the duty of the corporation to remove it within the rules established above, and for the performance of that duty the corporation is liable. These two men having been intrusted, as the employés of the corporation, with the performance of this duty imposed upon it, the corporation was undoubtedly liable for everything which they did within the scope of the task intrusted to them. They were sent there to remove these incumbrances. Their duty was not performed by taking the articles away from the place where they found them, and leaving them in the street, to be the prey of the first person who came along; but it is their duty to protect them, and to see that they were taken to the place provided for that purpose. It is provided by. the ordinances of the city that, when property is found incumbering the street, it shall be taken possession of by the persons whose duty it is to remove it, and taken to the corporation yard, that it may be redeemed by the owner within a certain time. Until such time, it is the duty of the officers of the *194corporation to keep the property, so that it may be redeemed. When,, therefore, these men undertook to remove these incumbrances, they were bound not only to remove them, but to put them in the place-provided by the city, where they might be kept until the time for the-owner to redeem them'had expired. This was just as much a part of their duty as it was to remove them from the street; and, while-they were engaged in this, they were just as much engaged in the business for which they had been sent there as while they were abating the obstruction in the highway. The liability of the defendant for their acts continued during all the time they were engaged in this-business, and, while they were so engaged, the city was responsibleciviliter for such acts if they were done within the scope of their employment. It being their duty to see that these articles were properly kept, they were bound not to permit any unauthorized person intake them away; and, if any one attempted to do that,.they were not only at liberty, but it was their duty, to use such force as was necessary to see that the property was not carried off. There was imposed, therefore, upon them, the necessity of considering whether in this case Scott was engaged in taking away the property which they were bound-to keep. _ If he was so engaged, then, of course, it was incumbent upon them to prevent it. The city had sent them there, not only to-prevent the taking away of this property, but to act if they had reason to believe that anybody was taking it away, and it had imposed upon them the duty of judging whether the necessity existed to protect the property which they were removing; and it is conceded that they had reasonable ground to believe, and did believe, that they were acting within the scope of their duty. The city is therefore liable for their action, although as a matter of fact they were mistaken in their judgment.

This proposition is laid down in the case of Higgins v. Turnpike Co., 46 N. Y. 23. In that case Higgins was a passenger on the defendant’s railroad, and he had been ejected from the cars by the conductor, who claimed that he was drunk and disorderly. For that act he brought an action against the defendant. His claim was that he was not drunk or disorderly, but that he was behaving himself properly, and that no reason existed for ejecting him from the cars. Upon that theory of the case the court was requested by the counsel for the defendant to charge that if the act of the conductor in removing him was unlawful, and-not justified by the circumstances, the plaintiff could not recover for any personal injuries occasioned by the assault of the conductor, there being no evidence of authority from the company to permit it. This charge was refused, and the defendant excepted. The plaintiff had a verdict. This verdict was necessarily founded upon the proposition that the plaintiff was not drunk or disorderly, and that the circumstances did not justify his expulsion from the.cars; and the question was whether, that being so, the defendant was liable for the act of the conductor in so ejecting him, although the conductor had no authority to eject him unless he was in fact drunk or disorderly. The court say that the expulsion of the plaintiff, if not justified by his misconduct, was an unlawful assault; and the question arises .whether the defendant .is responsible for the injury occasioned by the *195unlawful act of its servant, done under a mistake of facts or a mistake of judgment upon the facts, although in the course of the business of the master. This, it will be seen, is preciselv the question presented by the case at bar. The question in the case cited was answered in the affirmative, and the reason was that, although the defendant could act only through its agents, the appointment of an agent, with authority to maintain order, and to eject a passenger who had forfeited his right to ride, necessarily cast upon that agent the duty, of deciding whether in the given case the misconduct was such as to justify the expulsion. The court, say that, the duty of deciding being cast upon the officer, he represents the defendant. He may misunderstand or misjudge the facts; he may act unwisely or improperly or even recklessly; but the business of preserving order and enforcing the regulations of the company is committed to him, and for his act in that business the company is responsible. In these cases liability for the negligence or tort of his servant does not depend upon the existence of an authority to do a particular act from which the injury resulted. In most cases where the master has been held liable for the negligence of his servant, not only was there an absence of authority to commit the wrong, but it was committed in violation of the duty which the servant owed to his master. It is sufficient in these cases to make the master responsible in a civil action if the wrongful act of a servant is committed in the business of the master, and within the scope of his employment, although the servant in doing it departed from the instructions of his master. This case has been followed in numerous cases, and it must be deemed to be the established law of this state. Rounds v. Railroad Co., 64 N. Y„ 129; Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. 1001; Lang v. Railroad Co., 80 Hun, 275, 30 N. Y. Supp. 137; Wood, Mast. & Serv. §§ 282, 288, 307; Goff v. Railway Co., 3 El. & El. 672. While each of these cases is brought against a common carrier of passengers, it will be seen that in none of them is that fact depended upon to authorize the judgment .which was rendered. Indeed, in some of them the relation of a passenger did not exist. In each case the ground of the decision was that which is stated in the Case of Higgins, supra; and it depends solely on the relation of master and servant between the defendant and the employé, and not at all upon the relation of passenger and carrier. The application of this principle thoroughly established the liability of the defendant here for the acts of the two men, within the facts alleged in the complaint and stated in the opening.

For these reasons, it was error to dismiss the complaint, and the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

BARRETT, J.

I concur with Mr. Justice RUMSEY in this case. In the removal of obstructions and incumbrances from the highway, as required by law, the municipal corporation performs something more than a police or governmental function. The city is liable for damages resulting from its failure to remove such obstructions or incumbrances. It follows that, in doing what is thus required to avoid direct corporate liability, the city essentially acts for its own corporate ben*196efit; and persons to whom it intrusts the duty become its agents. The city is, in this view, clearly liable civilly for the acts of these agents, done by them within the scope of their authority.

The question in the present case, therefore, is whether the seizure of the bag in question, and the force used to obtain it, were within the scope of the agents’ authority. It will be observed that the complaint was dismissed upon the pleadings, and upon the plaintiff’s opening. Now, in the ninth paragraph of the complaint it is distinctly averred that all the acts done by these agents, of which the plaintiff complains, were so done in the transaction of the defendant’s business, and in furtherance of its orders. It is also averred that these acts were done while the agents were actually engaged in seizing and removing the incumbrances in question. The plaintiff’s counsel claimed in his opening that these agents acted upon the belief, reasonably caused by the surrounding facts and circumstances, that the leather bag which the plaintiff had in his hand, and which they attempted to take from him, was part of the mass of goods which constituted the incumbrances, and which they were directed to seize and remove.' This was further emphasized by the counsel’s further statement that there was “some evidence in his case” which he thought would satisfy the jury that these men believed that the plaintiff had taken and was going away with one of the very bags which they had already seized. All this, he said, transpired directly in front of the basement where the agents were operating, and where the horse and wagon belonging to the bureau of incumbrances stood, awaiting their action.

Upon this state of facts, it seems to me quite clear that the plaintiff should have been permitted to put in his evidence. There was nothing either in the complaint or opening to conclude him absolutely upon any material question in the case. He might have shown that the tortious acts of the defendant’s agents were committed in the corporate business, and were within the scope of their authority. The case presented by this complaint and opening was not necessarily that of a wanton seizure from a passing citizen of a bag which he happened to be carrying, upon the wholly unfounded assumption that it was a part of some neighboring incumbrance. The plaintiff was ready, and in substance offered, to prove that the defendant’s agents had reasonable cause to, and did, believe, that the bag in question was part of the incumbrances which at that very moment they were in pursuit of, and that the plaintiff was seeking to frustrate them in the performance of their immediate duty. The learned trial justice did not ■consider the latter question. He nonsuited the plaintiff primarily upon the ground that the men were not acting as the defendant’s agents, but as independent public officers, performing police or governmental duty. Had he treated these men as corporate agents, he would, doubtless, have permitted the plaintiff at least to make the attempt to prove that they were acting within the scope of their authority.

For these reasons, as well as for those given by Mr. Justice RUM-;SEY, I agree to the reversal.