
    Annie Kessler, Respondent, v. Joseph Deutsch et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1904.)
    Master and servant — To create liability of the master for an act of the servant the plaintiff must show affirmatively that the latter’s act was within the general scope of his authority.
    The master is responsible for an act of his servant, done within the general scope, of the employment, while engaged in the master’s business and to further it, and this whether the act be done negligently, wantonly or even willfully, but the plaintiff must establish by a preponderance of evidence that the servant acted withir. the general scope of his authority, apparent authority being insufficient.
    Appeal by the defendants from a judgment of the City Court of the city of Hew York,. entered in favor of the plaintiff upon the verdict of a jury, and from an order denying the defendants’ motion for a new trial.
    Sanders & Feltenstein (Moses Feltenstein, of counsel), for appellants.
    Louis Steckler, for respondent.
   Freedman, P. J.

The action was brought to recover damages for an assault and battery upon the plaintiff by the defendants’ servant who with others attempted to remove some property, from the plaintiff’s premises, which he had purchased from the defendants on the instalment plan. Ever since Mott v. Consumers’ Ice Co., 73 N. Y. 543, it is true, the rule-has heen well settled and enforced in a number of cases that for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the ’act be done negligently, wantonly or even willfully. /But in every case the burden of proof is' upon the plaintiff to establish by a preponderance of evidence that the servant acted within the general scope of his authority. Apparent authority is not enough. McGrath v. Michaels, 80 App. Div. 458. The-case at bar is in its essential features identical with Feneran v. Singer Mfg. Co., 20 App. Div. 574, and under the decision of that case the evidence in the present case.was insufficient to authorize the submission of the issues to the jury...

Judgment reversed and new trial ordered, with costs to appellants to abide the event.

Truax and Scott, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  