
    John Schmidt, Respondent, v. John Vanderveer and William Brown, Appellants.
    Second Department,
    January 26, 1906.
    Assault and battery on trespasser by servant — charge.
    When a servant employed to keep trespassers off lands-has committed a battery on such a trespasser, it is not error to charge that if the servant committed the battery in the .course o.f his duty to put trespassers off, the master is liable though the battery be wanton or vindictive, ■,
    In such action it is not error to refuse to charge that if the jury believe, as the counsel for plaintiff has said, that the reason why the assault was committed by the servant was that he was then revenging himself for the calling him opprobrious names by plaintiff or by a person supposed by him to be the plaintiff,. the jury cannot find a verdict against the master. As such request ■ contemplates the -battery in discharge of a duty, it'is not error to refuse so to charge.
    Mere flaws should not be picked in a judge’s charge.
    Appeal by the defendants, John Yanderveer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1905, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 27th day of March, 1905, denying the defendants’ separate motions for a new trial made upon the minutes.
    
      Frederic F. Mygatt, for the appellants.
    
      I. R. Qeland [Alexander S. Lyman and Thomas F. Fitzlmgh Lee with him on the brief], for the respondent.
   Gaynor, J.:

The defendant Brown was.employed by the defendant Yanderveer to keep trespassers off his land, and finding the plaintiff there crabbing committed a severe battery on him with a club. The court correctly charged in substance, that if .the servant committed the battery in the course of his duty to put trespassers off, the master was liable, even though the battery was wanton or vindictive. The plaintiff’s counsel had claimed in summing up that the motive for the battery was that a week previously a trespasser who had been put off by the servant had enraged him by calling him names (and this appeared from the servant’s testimony), and that when he saw the plaintiff he mistook him for the.previous trespasser, and committed the battery on him out of revenge. This caused the defendants’ counsel to make the following request "to charge, viz.: “ If" the jury believe, as the counsel for the plaintiff has said, that the reason why the assault was committed by Brown was that Brown was then revenging himself for the calling him of opprobrious names by plaintiff or by a person supposed by Brown to be the plaintiff, the jury cannot find a verdict against the defendant V anderveer.”

Now, as the learned trial judge perceived, if tlie battery were committed in putting the plaintiff off, that the reason ” for it was revenge would not exonerate the master. . It would still have been done in his service. If the defendant was in fact putting the plaintiff' off by the battery, that he adopted that way out of private revenge did not exonerate the master. The request therefore lacked an essential, and the refusal of it was not error. But if the battery was not committed in putting or to put the plaintiff off, or, if you will, to give him at the same time a good drubbing for coming on and teach him not to come again (for all of which the master would be liable), but on 'the contrary was done solely as an independent and disconnected act of revenge of the servant, the master would not be liable for it (Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289 ; Cohen v. Dry Dock, E. B. & B. R. R. Co. 69 id. 170).

If, therefore, the request had been' that if the battery was not committed in putting or to put the plaintiff off, or because he came on, or to teach him to stay off, and the “ reason ”-of it was revenge for the opprobrious names, the refusal would have been a different matter. The learned trial judge’s response to the request was that he could not charge it “in that form,” which warned counsel that it lacked something, or else contained too much; and when counsel, not content with a fair charge, resort to requests of exact nicety, they must abide to be judged by that same standard.

The learned trial judge did not. charge that the jury could not find against the Servant only, but must render a joint verdict, as is claimed, but the contrary. Mere flaws should not be picked in a judge’s charge. If he had ruled that to be the law of the case, the question whether the acts were done in the master’s service would not.have been submitted to the jury at all.

The judgment and order are affirmed.

Present — Jenks, Hooker, Gaynor, High and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  