Weiss v. Furniture-In-The-Raw
| Citation | 62 Misc.2d 283,306 N.Y.S.2d 253 |
| Decision Date | 12 December 1969 |
| Docket Number | FURNITURE-IN-THE-RA,J |
| Parties | Carl WEISS, Plaintiff, v.ames Walker, Defendant. |
| Court | New York City Court |
Lewis Rosenberg, New York City, for defendant.
Carl Weiss, in pro per.
NAT. H. HENTEL, Judge.
This is an action for conversion originally brought to recover the amount of $575.00 allegedly stolen from an apartment at 61--35 98th Street, Rego Park, New York, on September 20, 1969.
The facts of the case were stipulated and are as follows:
1. That the defendant, James Walker, was a truckman in the employ of Furniture-In-The-Raw Queens Corp., and was authorized by his employer to hire help 'off the street,' when a large delivery necessitated extra help.
2. He hired an unnamed youth of about sixteen years of age on September 20, 1969, to aid him in delivering furniture to the plaintiff. The youth, after the furniture had been delivered and, while still in the apartment of the plaintiff, removed the plaintiff's wallet from a coat in the apartment which plaintiff claims contained $575.00, but for the purpose of trial the amount is stipulated at $400.00. The youth then escaped with Defendant Walker and the Plaintiff in pursuit.
Defendants claim that Plaintiff's cause must fail as a matter of law since the complained of actions were clearly beyond the scope of the sub-agent employee's authority. The Defendant further relies upon the case of Stevens v. Lankard, 31 A.D.2d 602, 603, 297 N.Y.S.2d 686, 688 (2d Dept.1968). This case is distinguishable from the instant one in that it involved the commission of an act of sodomy by Defendant's employee upon a customer. The Court in that case held that a 'routine check into the man's background would never have revealed his prior sodomy conviction * * *' or his proclivities. The act of the employee in the Stevens v. Lankard case was not ordinarily foreseeable by the employer.
In this case, the Court finds that the Defendant through its employee Walker was negligent in hiring an unidentified teenager (or more properly impressing him into service) 'off the street' to assist in the moving of furniture into Plaintiff's apartment. The Defendant through its employee Walker failed to make an inquiry, even on a cursory or routine basis, as to the sub-agent's honesty or trustworthiness, and, at the very least, failed to ascertain the identity of the sub-agent and his residence address, so that there might be a starting point for...
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