The question presented on this appeal is whether Wynnett was the servant of the defendant, and while engaged in his master’s business, and acting within the scope of his employment, assaulted the plaintiff.
There is testimony tending to show that defendant was proprietor of the theatre in this city, known as the Standard Museum, and was personally in charge of the same on the night in question, and that he employed a traveling theatrical troupe to play for him, paying them therefor one-half the gross receipts, and that W ynnett, one of this company, was collecting the tickets for the proprietor, and attending to those who wanted to exchange seat tickets for other seat tickets, and that, while so engaged, this Wynnett was approached by plaintiff with a request to exchange the tickets for himself and his wife for tickets for other seats, and that Wynnett ordered plaintiff to get in line and take his turn, and that his refusal to do so resulted in some words, and then in an assault by Wynnett upon plaintiff.
We think there was sufficient evidence-to submit this question to the jury, and that a non-suit was properly denied. Rounds v. Del., Lack, and W.R. Co., 64 N. Y., 129.
The defendant also claims that the verdict in favor of plaintiff was against the weight of evidence. Technically speaking, perhaps, this question is not before us, for no motion for new trial on that ground was made. Assuming that it is regularly before us, we see no reason, on the evidence, to disturb the verdict on that ground. This covers the only questions «raised by the appellant’s points.
In our opinion, the judgment and order appealed from should be affirmed, with costs.
Clement, Ch. J., concurs.