Burns v. City of New York

• Decision Date: 20 May 1958
• Citation: 174 N.Y.S.2d 192,6 A.D.2d 30
• Parties: Raymond BURNS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Respondent, and Cornelius Flynn, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 192

174 N.Y.S.2d 192

6 A.D.2d 30

Raymond BURNS, Plaintiff-Appellant, v. The CITY OF NEW YORK, Respondent, and Cornelius Flynn, Defendant.

Supreme Court, Appellate Division, First Department.

May 20, 1958.

Albert Cohn, New York City, of counsel (Joseph N. Friedman, New York City, with him on the brief; Harry H. Lipsig, New York City, attorney), for appellant.

Alfred Weinstein, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, Corp. Counsel, New York City, attorney), for defendant-respondent.

Before BREITEL, J. P., and RABIN, McNALLY and STEVENS, JJ.

STEVENS, Justice.

This is an appeal by plaintiff from that part of a judgment entered in this action in the office fo the Clerk, Bronx County, July 7, 1955, and resettled in said office July 15, 1955, which set aside a verdict in favor of the plaintiff as against defendant, the City of New York, and dismissed the complaint against the City.

The facts are fairly stated in the accompanying dissent by Mr. Justice McNally, and will not be reviewed here.

The verdict having been set aside and the complaint dismissed, the facts are taken in the light most favorable to the plaintiff, and 'in determining whether the facts proved constitute a cause of action, give the appellant the benefit of every favorable inference which can reasonably be drawn.' Faber v. City of New York, 213 N.Y. 411, 414, 107 N.E. 756, 757.

It is not disputed that the plaintiff herein on the morning of April 15, 1953, was shot and injured severely by patrolman Flynn. The officer was dressed in civilian clothes and had completed his tour of active duty at 4 p.m., April 14, 1953.

The respondent contends that it is not liable because Flynn was not acting within the scope of his employment at the time that the acts were done.

In determining if there was evidence sufficient to raise a question of fact whether the acts complained of were committed within the scope of Flynn' employment a review of basic principles is required.

As was pointed out in one of the leading cases on the subject 'There is, at this time, but little conflict of judicial opinion in respect to the general rule by which the liability of a master for the misconduct of his servant, resulting in injury to third persons, is to be tested and ascertained. * * * When the master is to be considered as having authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty.' Andrews, J., Rounds v. Delaware, Lackawanna and Western Railroad Co., 64 N.Y. 129, 133.

'When it is said that the master is not responsible for the willful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury not done with a view to the master's service, or for the purpose of executing his orders.' Cohen v. Dry Dock, East Broadway and Battery Railroad Company, 69 N.Y. 170, 174.

In the case just cited plaintiff, while driving along a street in the city of New York, was stopped by a blockade of vehicles, leaving the rear part of his buggy dangerously near the defendant's track so that a car could not pass upon the track without striking it. A car approached on the track driven by defendant's employee who stopped, observed the situation and directed the plaintiff to move. The plaintiff promised to move as soon as he could. Thereafter, using profanity and threatening to get plaintiff 'off some way or other,' defendant's employee started his horses, the platform of defendant's car struck plaintiff's buggy and overturned it, causing injury.

The court said 'The evidence should at least have been submitted to the jury. They were the proper judges of the motives and purposes of the driver, and of the character and quality of his acts.' Ibid., at page 174.

In the Rounds case, 64 N.Y. 129, supra, the defendant's brakeman ejected a trespasser from the train. The boy fell against a woodpile, which the brakeman knew was at that location, and rolled under the car and was injured. The rules prohibited anyone riding upon the platform of the cars.

The trial court (at page 132) refused to charge that the defendant was not liable 'if the baggageman acted willfully and wantonly without authority from the defendant.'

The Court of Appeals, in affirming the judgment, pointed out 'If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without references to his master's business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved.' Rounds v. Delaware, Lackawanna and Western Railroad Co., supra, 64 N.Y. at pages 137, 138.

While it is for the court to pass upon the competency of the evidence, when the defense is that the act was not within the general scope of the servant's authority, it is for the jury to give effect to it. See Mott v. Consumers' Ice Company, 73 N.Y. 543, 550.

It should be pointed out that although Flynn was assigned regular hours of active duty, he was in fact on call twenty-four hours a day and subject to duty at all times. Rules and Regulations of the People Department, No. 157. He was charged with a corresponding duty 'at all times of the day and night, to protect life and property, prevent crime, detect and arrest offenders,' etc. Ibid, No. 155. In recognition of the existence of the duty and to facilitate its execution, Flynn was required to carry a service revolver at all times, and this might well have been a foreseeable consequence, though we do not so hold. The blowing of a whistle or the punching of a time clock did not serve as the line of demarcation in his employment.

'The degree of responsibility conferred upon an employee is an important consideration in determining scope of employment, for, as the court put it in Cohen v. Dry Dock, East Broadway and Battery R. Co., 69 N.Y. 170, 173: 'The master who puts the servant in a place of trust or responsibility * * * is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper * * * goes beyond the strict line of his duty or authority, and inflicts an injustifiable injury upon another." Froessel, J., Becker v. City of New York, 2 N.Y.2d 226, 232, 159 N.Y.S.2d 174, 180.

By reason of the peculiar nature of the policeman, Flynn's, employment, he did not cease to be an employee when his tour of active duty ended. It cannot be contended seriously, that an officer, not on active duty nor assigned to the narcotic squad, is without authority to arrest a narcotic violator or even a narcotic suspect. If this had been a valid arrest, unquestionably the City would have openly ratified Flynn's action

Bearing that in mind much, if not most of the testimony of Nelson which was excluded, might have been admitted in evidence as against the defendant City, not necessarily to establish the truth of the content of the alleged conversations, as to establish the fact and nature of such conversations.

We refer particularly to Nelson's conversation with Flynn regarding the purpose of the proposed nocturnal excursion and their subsequent activities in alleged pursuance of the stated objective. This was conversation with a defendant who without question was an employee of the City and it could not at that stage be determined whether or not Flynn was acting within the scope of his employment.

Here the witness Nelson was available with ample opportunity afforded for cross-examination, the deprivation of which constitutes the principal justification for the hearsay rule. The fact that certain statements were made, as distinguished from their truth or falsity, was relevant upon the trial. Such statements were not offered as testimonial assertions, but they might well serve to indicate circumstantially the state of mind of Flynn acting thereafter. See, Richardson on Evidence, 8th Edition, § 206 et seq. For there are occasions when the intent of a servant in the doing of an act, or the nature and quality of the act done, become material.

To hold a master liable where there has been an excessive or erroneous use of authority, 'it must be shown both that the servant intended to do on behalf of the master something of a kind which he was in fact authorized to do, and that the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.' Osipoff v. City of New York, 286 N.Y. 422, 427, 36 N.E.2d 646, 648, 136 A.L.R. 1354, citing Pollock's Law of Torts (14th ed.) pp. 72, 73.

If Flynn in fact had observed a narcotic violator, to notify the narcotic squad would have taken time, caused delay and probably resulted in the escape of the suspect. The question, therefore, of the scope of his employment, the intent with which he did the act, and whether, under the circumstances the act was one he was justified in doing on his master's behalf, were questions for the jury. See Casey v. Davis & Furber Machine Co., 209 N.Y. 24, 102 N.E. 523; Sims v. Bergamo, 3 N.Y.2d 531, 169 N.Y.S.2d 449.

We think this case can be distinguished from the Sauter case (Sauter v. New York Tribune, 305 N.Y. 442, 113 N.E.2d 790) where, after two vehicles collided, the defendant's driver-employee, being called upon to give his license, struck the plaintiff. The parties were separated. The plaintiff went back of the truck and got down on one knee to look under the lowered tail gate to read the license number. While in that position, the defendant's driver went back to him and kicked plaintiff in the face. The court observed, 'The assault upon plaintiff was something more than imperfect performance of the duty to submit credentials when circumstances required; it was a positive refusal to act as...