Utter v. Forty-second Street & Grand Street Railroad

The judgment will have to be affirmed. ■Conceding that defendants would be liable for the willful and malicious acts of their driver, if they retained him in their employ, knowing him to be “ a malicious man,” and that he had ,<£ done something of the kind before,” yet there was no proof in the case that notice of such facts had been brought to the -officers of the company before the injury here complained of. The declarations or admissions of such knowledge made by the president of the company after the occurrence, were not competent to charge the company (55 N. Y. 584; 17 N. Y. 131; 28 N. Y. 153). Although this proof was received without objection, the justice had a right to disregard it, and did so.

The president himself, or other officers, who knew the character of the driver, should have been called, or other evidence given of notice to the officers before the injury. The injury -clearly resulted from the willful act of the driver.

Charles P. Daly, Ch. J., and Loew, J., concurred.

Judgment affirmed.