Stoll v. Hessen

Judgments of the County Court of Suffolk county reversed upon the law and the facts and a new trial ordered, costs to appellant to abide the event. This action was brought by the plaintiff to recover damages for personal injuries claimed to have resulted from the negligence of the respondents, employees of defendant Hessen. The complaint was dismissed at the close of the plaintiff’s case on the ground that the respondents, as agents or servants, were not liable. The acts, alleged and proved, constituted misfeasance, for which the respondents may be held liable in damages. While the plaintiff may have treated the acts of the servants as the acts of the master, the action was not instituted upon that theory. (See Judson v. Fielding, 227 App. Div. 430; Murray v. Usher, 117 N. Y. 542.) Lazansky, P. J., Young, Kapper, Hagarty and Scudder, JJ., concur.