
    Margaret Feneran, Respondent, v. The Singer Manufacturing Company, Appellant.
    
      .Sale upon the installment plan—the vendor is not liable for an assault committed by its'collector in attempting forcibly to remove a sewing machine for non-payment by the purchaser- -v a practical construction put upon a pleading by the parties.
    
    .A vendor of goods sold upon the installment plan,"who employs a man to collect" installments and expressly instructs him that he must not in any case touch or take .the goods for thé non-payment of an installment, is not liable for an assault upon the vendee committed by the collector, while attempting to retake the goods because of the non-payment of an installment, as such act is not within the scope of the collector’s employment.
    
      jSemble, that even in the absence of such instructions no liability would exist in such a case on the part of the vendor.
    A practical construction which both the parties to an action and the court put upon a pleading during the trial thereof should prevail upon an appeal.
    Appeal by the defendant, The Singer Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, ■entered iu the office of the clerk of the county of Kings on the 20th day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      William H. Hamilton [Rastus S. Ransom with him on the brief], for the appellant.
    
      Alfred E. Mudge [Arthur C. Salmon with him on the brief], for the respondent.
   Willard Bartlett, J.:

The plaintiff has recovered damages against the defendant to the amount of $1,200 for an assault and battery committed upon'her by one William H. Ross, in the city of Brooklyn on the lltli day of July, 1895. She had purchased a sewing machine from the defendant on the installment plan for which she was to pay sixty-five dollars in all. Ross was a collector and salesman in the defendant’s employ. He ■called at the abode of the plaintiff to collect an installment of three dollars. Mrs. Feneran offered him two dollars, saying that was the best she could do to-day; Ross declined to accept the two dollars, and, declaring with an oath that he would have the machine, sprang into the bedroom where it was standing, seized it and began to drag it out. Mrs. Feneran attempted to detain the machine, whereupon Ross struck her, knocked her down and kicked her, inflicting injuries for which the verdict would be none too large if it were against him personally instead of against the Singer- Manufacturing Company.

It does not seem to us, however, that the judgment can be maintained against the corporation. The basis of liability in such cases is clearly defined. The employer is not liable unless the wrongful act is done in the course of the employment. (Meehan v. More- wood, 52 Hun, 565 ; affd. on opinion at General Term, 126 N. Y. 667.) The proof was clear that the employee here had no authority to take away a machine for the non-payment of an installment or for any other reason. ¡Ross had been a salesman,, and when he began .to work as a collector for the defendant he was expressly instructed that if he could nojb get a payment which he sought to collect, he must not in any "caie touch or take the machine. Even without this instruction in the negative, I do not think any authority to- seize and carry away the; machine could be implied from the mere employment of the assailant, as a collector, and I have so held at Circuit. (Marciano v. Singer Manufacturing Company, Kings Co., Nov. 1894, unreported.).

In the cases to which I have referred’ I am committed, to a view of the law which ,is fatal to the recovery in the present action unless the averments’ in the 2d paragraph of Subdivision 2 of the answer may fairly be regarded as an admission that Ross acted with the authority of the defendant corporation in his -efforts to take and carry away the maphhie. Upon the oral argument I was inclined. • to think that the answer might be thus construed; but a careful examination of the record satisfies me that it was not so intended by the pleader, or sb understood" by the counsel for the plaintiff or by the court. The proof in behalf of the defendant and the discussions on the varijous motions show that it was the contention of the- defendant throlughout "that Ross -had no authority,, general or otherwise, to retake the’machine from a delinquent purchaser. Under these circumstances^ the practical construction which both the parties -and the court put ujpon the pleading during the trial should .prevail* with- us here.

As the .case stood j when all the eviden ce was in,- there was no- proó f sufficient to justify a finding by the jury that the servant in. committing the assault ivas at the same time acting within the'scope of . the master’s employment. The motion to direct a ■ verdict for the ■ defendant should, therefore,.have been granted. • .

I think we ought!to reverse the judgment and order a. new trial.

All concurred.

Judgment and ojrder reversed and new trial granted,, costs to abide the event. .  