
    James Parker, an Infant, by Richard Parker, His Guardian ad Litem, and Richard Parker, Appellants, v. New York State Realty and Terminal Company and Another, Respondents.
    First Department,
    February 7, 1936.
    
      
      Jay Leo Rothschild of counsel [Robert Landor Bobrick, attorney], for the appellants.
    
      K. O. Mott-Smith of counsel [Clive C. Handy, attorney], for the respondents.
   Per Curiam.

The order setting aside the verdicts was correct, not for the reasons mentioned by the trial court, but because of prejudicial error committed in the court’s charge.

So far as appears from the record, the evidence identifying the alleged assailant of the infant plaintiff shows that he might have been employed by the railroad company either as a flagman on the Eleventh avenue railroad tracks or as a watchman of defendants’ building. In the circumstances, the jury might have found that when the alleged assault was committed upon the infant plaintiff in the defendants’ vacant building, the attack was perpetrated by an employee not acting within the scope of his employment. If such a conclusion had been reached by the jury, the plaintiffs could not recover. The trial court, therefore, erred in failing to charge and in refusing, upon request, to charge that if the assault was committed by an employee of the railroad company, the jury could find for the plaintiffs only in the event that the employee who committed the assault “ was acting within the scope of his employment.” (Muller v. Hillenbrand, 227 N. Y. 448, 451; Girvin v. N. Y. C. & H. R. R. R. Co., 166 id. 289.)

The order appealed from should be affirmed, with costs.

Present —■ Martin, P. J., O’Malley, Dore and Cohn, JT.

Order affirmed, with costs and disbursements.  