
    Thomas Grimes, as Administrator, etc., of James Grimes, Deceased, Appellant, v. Nicholas P. Young, Individually and as Administrator, etc., of Joseph Young, Deceased, and Martin A. Metzner, Respondents.
    
      Master and servant —■ liability of the former for the wanton act of the latter, while acting as a watchman, in shooting a boy.
    
    A master, who furnishes a watchman in his employ with a revolver, and instructs him to fire in the air when necessary to frighten away intruders, for purposes of self-defense, or to protect the property committed to his care, is not liable for the act of the watchman, while on duty, in wantonly shooting with the revolver a boy who was not upon the master’s property, and who had made no attempt to trespass thereon, or interfere therewith.
    Appeal by the plaintiff, Thomas Grimes, as administrator, etc., of James Grimes, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 10th day of October, 1899, upon the- dismissal of the complaint at the close of the plaintiff’s evidence by direction of the court on a trial before the court and a jury.
    
      Stephen M. Hoye, for the appellant.
    
      Hwniel P. Haps, for the respondents.
   Willard Bartlett, J.:

Between five and six o’clock in the afternoon of July 10, 1897, on a public wharf at the foot of Harris avenue in Long Island City, a lad named James Grimes was killed by a shot from a pistol fired by one John Buck. For about four months prior to the shooting Buck had been acting as a night watchman for the firm of Young & Metzner, whose bagging works were situated on Yemen avenue between Harris avenue and Bodine street. The object of the present action is to hold the members of this firm civilly responsible for the atrocious crime which Buck committed in wantonly killing the Grimes boy. The learned judge before whom the-case was tried dismissed the complaint at the close of the plaintiff’s evidence, and the plaintiff has appealed to this court, insisting that he was improp- ■ erly nonsuited.

It appears that Buck had succeeded a man named Loew as night watchman for the defendants. A pistol had been furnished to Loew .by the defendants, one of whom had cautioned him to use it simply for self-defense and then to shoot in the air and frighten away anybody. When Buck took Loew’s place Loew gave him the revolver and told him that if ever there was any danger, that if the property was in danger or if he was in danger, he was to shoot in the .■air.” According to Loew’s testimony he gave this instruction to IBuck by the express direction- of Mr. Metzner, one of the defendants. Taking all the evidence on this subject together, we have the ■ case of a watchman armed with a revolver by his employers and authorized by them to fire with it into the air in order to frighten .away intruders, for purposes of self-defense, or to protect the property which he was employed to watch. If, under these circum■.stances, it appeared that the watchman, either to defend himself or -to protect the property of his employers, had fired at a person and ildlled him instead of firing into the air, according to the direction .of his employer, it might very well be that the master would he .-responsible for the wrongful act of the servant. Such a question -.of liability would be presented if Buck liad shot Grimes while Buck was on duty acting as- a watchman for the defendants, and was «engaged in an endeavor to shield their property' or his own person from some attack on the part of the lad. If he had aimed at Grimes ;and-fired and killed him under such circumstances, although.in disregard of the defendants’ directions to fire in the air, his employers might be chargeable with his act under the well-established doctrine' •that the master may be held responsible for the acts of the servant -within the general scope of his employment while engaged in the master’s business, even though the servant’s act be negligent, wanton -or willful. (Mott v. Consumers' Ice Co., 73 N. Y. 543; Ochsenbein v. Shapley, 85 id. 214; Burns v. Glens Falls R. R. Co., 4 App. Div. 426; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23.) The wantonness or willfulness of an assault makes no difference if the act was done in the scope' of the master’s employment. (Meehan v. Morewood, 52 Hun, 566 ; affd., 126 N. Y. 667.)

But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or, in order to effect some ■purpose of his own, wantonly commits a trespass, or causes damage -to another, the mastér is not responsible.” (Mott v. Consumers' Ice Co., supra.)

It seems to us that the facts, of the present case bring it within the rule thus stated. It is not clear from the evidence that when Buck fired the fatal shot he had gone on duty for the night as the defendants’ watchman; but whether he had or not, it is manifest that his assault upon Grimes was an act wholly outside the scope of his employment and having no connection whatever therewith. The Grimes boy was not upon the premises of the defendants, nor had he made any attempt to trespass upon their property or interfere therewith. He had been bathing in the river with a number of companions; and after leaving the water, and while standing upon the public .wharf, was shot down by Buck without the slightest provocation. Indeed, the testimony of one of the witnesses is to the effect that Buck was unarmed when he first saw the boy, and went away to get the revolver with which he subsequently did the shooting. It is difficult. to find language strong enough to justly characterize Buck’s conduct; but it would be unwarrantably extending the doctrine of a master’s liability for the acts of his servant to hold that Buck’s employers were in anywise responsible for his crime.

The nonsuit was right, and the judgment should, therefore, be affirmed.

Jenks, J., not sitting.

Judgment unanimously affirmed, with costs.  