
    Carl Osipoff, Respondent, v. The City of New York and Vincent Sisto, Appellants.
    Second Department,
    November 25, 1940.
    
      Stanley Buchsbaum [William C. Chanler, Corporation Counsel; Irving Galt with him on the brief], for the appellant The City of New York.
    No appearance for the appellant Vincent Sisto.
    
      Myles Levinson, for the respondent.
   Per Curiam.

Action brought by plaintiff, who operated a truck upon a public highway, a part of the pavement of which had been repaired by the defendant municipality. The debris from the repairs was being removed from the site by the city, whose laborers were shoveling the debris into a city truck, when the plaintiff, with his truck, was desirous of passing the site, which was obstructed by the city truck and otherwise. Plaintiff was assaulted with a shovel by one of the city’s laborers, who was temporarily in charge of the others, and was seriously injured. Upon the trial of the issues before the court and a jury a verdict was rendered in plaintiff’s favor against the defendant municipality and the laborer, Vincent Sisto, the active tort feasor. From a judgment entered on that verdict defendants appeal.

As far as the municipality is concerned, no question of fact relating to liability is disclosed in the record. As matter of law, the city is not liable for the assault committed by its employee, Sisto, upon the plaintiff, as the same was not committed within the scope of Sisto’s authority as employee. (Mott v. Consumers’ Ice Co., 73 N. Y. 543, 547, 548; Muller v. Hillenbrand, 227 id. 448; Zucker v. Lannin Realty Co., Inc., 217 App. Div. 487; Restatement, Agency, § 245, comment d, illustration 8.)

As to defendant Vincent Sisto, the judgment should be affirmed, with costs.

As to defendant The City of New York, the judgment should be reversed on the law, with costs, and the complaint dismissed on the law, with costs.

Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

As to defendant Vincent Sisto, the judgment is unanimously affirmed, with costs.

As to defendant The City of New York, the judgment is reversed on the law, with costs, and the complaint dismissed on the law, with costs.  