
    John A. Fisher, Appellant, v. The Brooklyn Jockey Club, Respondent, Impleaded with Lawrence Van Siclen.
    
      Pleading—charging negligence onthepa/rt of a servant — it must, in an action against him and his master, he alleged to have occurred within the scope of his-employment.
    
    The complaint, in an action against a master and his servant to recover damages for personal injuries sustained by the plaintiff, which states that the injury was occasioned through the servant’s negligence, must allege expressly, or by fair implication, that the servant’s negligent act was within the scope of his, employment.
    
      The complaint in such an action alleged that the plaintiff, a detective in the employ of a detective agency, was stationed at the main gate of a race track maintained by the defendant, the Brooklyn Jockey Club, under a contract between the latter and his employer, and that it was the plaintiff’s duty each afternoon to raise the gate, which was hung upon cables controlled by weights in a box; that one of the cables having slipped from the wheel on which it moved, the plaintiff grasped the cable for the purpose of replacing it on the wheel, “ when the defendant Lawrence Van Siclen carelessly and negligently, and without giving any warning to this plaintiff, struck the box containing the said weights, which action caused the said gate to rise suddenly and caused the plaintiff’s thumb to be caught between the said cable and wheel;” and that “solely by reason of the defendant’s negligence, as aforesaid, and without fault or negligence on the plaintiff’s part, the thumb of the plaintiff’s right hand was cut off at the joint, and was further badly crushed and injured and wounded.”
    The complaint further alleged that “the defendant Lawrence Van Siclen was a carpenter in the employ of The Brooklyn Jockey Club; * * * that as such carpenter it was the duty of the said defendant Lawrence Van Siclen to maintain in repair and good order the main gate upon the race track hereinafter mentioned, and to repair the same whenever necessary.”
    
      Meld, that the complaint did not state a cause of action against the Brooklyn Jockey Club, as it did not allege that Van Siclen struck the box containing the weights for the purpose of repairing the gate or keeping it in good order or that such act was designed to improve the condition of the gate or put it in order or that it was done in the service of the Brooklyn Jockey Club.
    Appeal by the plaintiff, John A. Fisher, from a judgment of the Supreme Court in favor of the defendant, The Brooklyn Jockey Club, entered in the office of the clerk of the county of Kings on the 10th day of August, 1899, upon the dismissal of the complaint as to said defendant by direction of the court after a trial before the court and a jury at the Kings County Trial Term, with notice of an intention to bring up for review upon such appeal so much of an order entered in said clerk’s office on the 16th day of August, 1899, as denied the plaintiff’s motion for a new trial against the defendant, The Brooklyn Jockey Club.
    
      Arnold Charles Weil, for the appellant.
    
      WilTÁam M. Benedict, for the respondent.
   Willard Bartlett, J. :

Upon the trial of this action, after the case had been opened by counsel for the plaintiff, the learned trial judge remarked that he did not perceive any cause of action, and thereupon dismissed the complaint upon the pleadings and the opening. This dismissal was in favor of both defendants. The plaintiff subsequently moved for a new trial on the minutes, and the application was granted as against the defendant Lawrence Van Siclen, but was denied as against the Brooklyn Jockey Club. In disposing of the motion the learned trial judge expressed the opinion that although a cause of action was set out against the individual defendant, none was alleged against the defendant corporation.

We concur in this view. The case comes up like Sheridan, v. Jackson (72 N. Y. 170), where, after the opening, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the plaintiff, without asking for leave to amend, excepted to the decision and appealed, insisting that his; complaint was sufficient. Under these circumstances the only question for us to consider is whether the complaint states a cause of action against the Brooklyn Jockey Club.

The purpose of the action is to recover damages for personal injuries sustained by the plaintiff while employed as a detective by the Pinkerton National Detective Agency, on the race track managed by the Brooklyn Jockey Club at Gravesend, in the borough of Brooklyn. The complaint alleges that at the time he was hurt the plaintiff was stationed at the main gate of the track, in pursuance of an agreement between the Pinkerton National Detective Agency and the Brooklyn Jockey Club, whereby the agency agreed to place officers upon the track to maintain order and prevent the commission of crimes. This gate was hung on cables controlled by weights in a box. It is further alleged that in pursuance of the contract the plaintiff had been directed by his employers, and it was his duty, to raise the gate on the afternoon of each day; -that on September 19, 1898, the gate was out of order, one of the cables upon which it was hung having slipped from the wheel on which such cable moved; that the plaintiff carefully mounted upon the gate and grasped the cable for the purpose of replacing the same upon the wheel “ when the defendant Lawrence Van Siclen carelessly and negligently, and without giving any warning to this plaintiff, struck the box containing the said weights, which action caused the said gate to rise suddenly and caused the plaintiff’s thumb to be caught between the said cable and wheel,” and that “ solely by reason of the defendant’s negligence, as aforesaid, and without fault or negligence on the plaintiff’s part, the thumb of plaintiff’s right hand was cut off at the joint, and was further badly crushed and injured and wounded.” In the contents of the complaint, so far as they have been stated, there is nothing to show any liability on the part of the Brooklyn Jockey Club for the acts of the defendant Yan Siclen. The relations between him and the corporation are stated in the 2d and 3d numbered paragraphs of the complaint, as follows :

That at all the times hereinafter mentioned the defendant Lawrence Yan Siclen was a carpenter in the employ of The Brooklyn Jockey Club; * * * that as such carpenter it was the duty of the said defendant Lawrence Yan Siclen to maintain in repair and good order the main gate upon the race track hereinafter mentioned, and to repair the same whenever necessary.”

In order to charge a master with the negligence of his servant it is necessary to prove that the servant’s negligent acts were done in the prosecution of the business which the servant was employed to do. No principle in the law of negligence is better settled than this. (Cosgrove v. Ogden, 49 N. Y. 255 ; Meehan v. Morewood, 52 Hun, 566; affd., on opinion below, 126 N. Y. 667.) A plaintiff who seeks to recover damages from a master on account of personal injuries inflicted by a servant in the course of his employment, may often properly, in his complaint, charge the master with the negligence which he deems to be actionable, without making any express mention of the servant by whose act the injury was inflicted. Where, however, as in the case at bar, the plaintiff sets out in his complaint facts which show that the injury of which he complains was actually inflicted by one of the defendants, who was at the time in the service of the other, and seeks to charge the other only by reason of the relation of master and servant existing between them, it is essential that he should allege expressly or by fair implication that the servant’s acts were within the scope of his employment.

The complaint under review is plainly defective in this respect. While it alleges that as a carpenter in the employ of the Brooklyn Jockey Club it was the duty of the defendant Yan Siclen to maintain the gate in repair and good order and repair the same whenever necessary, it omits to allege that when Van Siclen struck the box containing the weights and caused the gate to rise suddenly, catching the plaintiff’s thumb, he did this for the purpose of repairing the gate or keeping it in good order. There is nothing to indicate that the act of striking the box as alleged would have any effect to improve the condition of the gate or put it in order; nor is the act alleged to have been done in the service of the Brooklyn Jockey Club. If the plaintiff had applied for leave to amend, he might very well have been permitted to do so upon proper terms ; but the court below was clearly right in holding that he was not entitled to maintain the action against the Brooklyn Jockey Club upon the complaint as it stood.

The judgment should be affirmed.

Judgment and order unanimously affirmed, with costs.  