
    Dante Giannettino, an Infant, by John Giannettino, His Guardian ad Litem, Appellant, v. Maks Weiss, Respondent.
    
      Negligence — master and servant — assault — when act of janitress in throwing stick at hoys not within scope of employment.
    
    
      Giannettino v. Weiss, 194 App. Div. 898, affirmed.
    (Argued May 10, 1922;
    decided May 31, 1922.)
    Appeal from a judgment, entered November 29, 1920, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of a janitress in the employ of defendant. The plaintiff, a boy eleven years of age, was walking down a hill in the city of New York, and as he and another boy, who accompanied him, were about to step upon the sidewalk in front of an apartment house owned by the defendant, they saw a crowd of boys teasing the janitress, who was in her apartment just below the sidewalk, by making faces at her and by throwing bricks and ashes at her. The janitress came up from her apartment crying out, “ Wait until I get hold of you,” and as she ran after the boys she picked up a stick and threw it at them. The stick hit the plaintiff, his left eyeball was pierced, and the sight of that eye destroyed. The Appellate Division held that the janitress in assaulting the plaintiff was not acting within the actual or apparent scope of her employment.
    
      Henry W. Unger andF. A. Castellano, Jr., for appellant.
    
      Harold R. Medina and Solomon Ullman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound,' McLaughlin, Crane and Andrews, JJ.  