Rettig v. John E. Moore Co. , 154 N.Y.S. 124 ( 1915 )

Bijur, J.

Defendant was sued for an alleged assault committed by one of its employees, Captain Sweeney, upon the plaintiff, the assault having taken place upon government property at Ellis Island, the defendant being the owner of a boat of which Sweeney was captain.

The learned judge below submitted to the jury as one of the vital if not the most important question in the case, whether Captain Sweeney was acting within the scope of his authority under his employment by the defendant. The verdict of the jury, as recited by the foreman, was: “We find in favor of the defendant, and we also request that Captain Sweeney be censured.” This request, which, of course, was superfluous and improper, is entirely consistent with the verdict for the defendant. In other words, the jury found that Sweeney was not acting within the scope of his authority, but desired to have him censured for personal misconduct. In that respect, this case differs materially from Conrey v. Metropolitan St. R. Co., 73 App. Div. 518, where the verdict was “ for defendant, with recommendation to the court to award plaintiff $300 as compensation for her losses.” The two clauses of this verdict were plainly inconsistent, and the verdict could not be understood. In the case at bar, it seems to me that the verdict was clearly for the defendant, and the superfluous recommendation should merely have been stricken ont by the court by way of correction and disregarded. See Briggs v. Hilton, 99 N. Y. 517, 531.

Order reversed, with costs; verdict reinstated and corrected by striking therefrom' ‘ and we also request-that Captain Sweeney be censured; ” and judgment directed to be entered thereon in favor of defendant, with costs in the court below.

Guy and Page, JJ., concur.

Order reversed, with costs.