#### Herman Rein, an Infant, etc., by Solomon Rein, his Guardian *ad Litem,*Respondent, *v.*The Brooklyn Heights Railroad Co., Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Municipal Court — Jurisdiction — Action of assault — Amendment of complaint on appeal.

The Mimicipal Court of the city of New York has no jurisdiction of an action for an assault.

But where upon the trial of such an action in said court, it appears that the assault was made upon a passenger by a railway conductor, the plaintiff is entitled to recover compensation for the injuries caused by the assault upon the theory of a breach of the earner’s implied contract; and the power of the trial court to amend the complaint to conform to the proof (Municipal Court Act, § 166) being by implication extended to this court (Municipal Court Act, § 326) it may on appeal allow such an amendment im support of a judgment for the plaintiff.

*676Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, fifth district, borough of Manhattan.

George H. Yeoman (II. E. Ives, of counsel), ,for appellant.

George J. Gruenberg, for respondent.

Dugro, J.

The gravamen of the cause of action set forth in the complaint is an alleged assault made by the defendant, and so the action is for assault, and under the statute the Municipal Court is without jurisdiction. Mun. Ct. Act, § 1; Fister v. Metropolitan St. R. Co., 30 Misc. Rep. 430. It does not appear, in Hart v. Metropolitan St. R. Co., 34 Misc. Rep. 522, that the attention of the appellate court was called to the question of jurisdiction. At the trial there was evidence that plaintiff, while a passenger on defendant’s car, was assaulted by defendant’s conductor. A complaint could have been framed according to this evidence against the defendant for-damages for breach of contract, and of such an action the Municipal Court would have had jurisdiction, for the assault, according to the evidence, was not that of the defendant, but solely that of the conductor, for it did' not appear that the conductor acted in the course of his work and within the scope of his employment. There is an implied contract on the part of a common carrier that its employees will not subject the passengers to unlawful violence, and when an employee does so subject a passenger he has a right of action for breach of contract, in which compensation for the injuries caused by the assault will ordinarily be the measure of damages. In view of the fact that all evidence bearing upon the doings of the plaintiff and the conductor at the time in question, which the parties were able to present, was received, and that according to the justice of the case, without regard to technical errors or defects, which do not affect the merits, the complaint can be amended so as to conform to the proof and the amendment will be in support of the judgment. The com*677plaint is amended, accordingly, and the judgment will be affirmed, with costs. Section 166 of the Municipal Court Act requires the court to allow a pleading to be amended at any time if substantial justice will be promoted thereby (See also Shirtcliffe v. Wall, 68 App. Div. 375; Hawkes v. Burke, 34 Misc. Rep. 189), and section 326 extends that requirement by implication to the appellate court.

Scott, J., concurs.

MacLean, J.

(concurring). The plaintiff alleged that on or about September 5, 1904, he was a passenger of the defendant for hire, and while such the defendant, by and through its agents, servants and employees, wrongfully, unlawfully and forcibly assaulted him. Literally, this is within the inhibition of subdivision 14 of section 1 of the Municipal Court Act, and not within the jurisdiction of that court. But in Hines v. Dry Dock, E. B. & B. R. R. Co., 75 App. Div. 391, upon an oral complaint for personal injuries, amplified by particulars to the effect that the plaintiff boarded a car of the defendant and tendered his fare, that the conductor refused to take it, and, without cause or provocation, assaulted the plaintiff, it was held that “ the cause of action was founded upon the contract between passenger and carrier, and the liability of the defendant arose from the breach thereof,” and was not within the purview of subdivision 2 of section 1364 of the Greater New.York Charter. In deference thereto and under similar pleading, I am of opinion that the judgment herein should he affirmed, without resort to further refinement of interpretation.

Judgment affirmed.