Opinion of the Court, per ANDREWS, J.

of his servant, not only was there an absence of authority to commit the wrong, but it was committed in violation of the duty which the servant owed to the master. The principal is bound, by a contract made in his name by an agent, only when the agent has an actual or apparent authority to make it; but the liability of a master for the tort of his servant, does not depend primarily upon the possession of an authority to commit it. The question is not solved by comparing the act with the authority.

It is sufficient to make the master responsible civiliter, if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this, although the servant, in doing it, departed from the instructions of his master. This rule is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his business. If the business is committed to an agent or servant, the obligation is not changed.

The omission of such care by the latter, is the omission of the principal, and for injury resulting therefrom to others, the principal is justly held liable. If he employs incompetent or untrustworthy agents it is his fault; and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided only, that the agent was acting at the time for the principal, and within the scope of the business intrusted to him.

It is often stated, and with sufficient accuracy for general purposes, that a master is not liable for an assault committed by his servant.

It is said by Lord KENYON, in the leading case of McManus v. Crickett (1 East, 106), "that when a servant quits sight of the object for which he was employed, and, without having in view his master's orders, pursues that which his own malice suggests, his master will not be liable for such acts." If for his own purposes, and not in his master's business, the servant commits an assault, the master is not responsible; and the

Opinion of the Court, per ANDREWS, J.

statement, that the master is not liable for the assault of his servant requires this qualification.

In the case of Sandford v. Eighth Avenue Railroad Company (23 N. Y., 343), the action was brought to recover damages, resulting from the death of the plaintiff's intestate, caused by his being thrown from the car of the defendant, by the conductor, when it was in motion. The deceased refused to pay his fare, and for that reason the conductor ejected him. The court held that the conduct of the intestate, justified the conductor in expelling him from the car in a proper manner, but not when the car was in motion, and the defendant was held liable for the injury. COMSTOCK, Ch. J., says: "The case is, therefore, to be stated thus: The defendants by their servant were guilty of a personal and intentional assault upon the intestate. The assault, as we think, was not in law justified by the fact, and they are consequently without a legal defence."

This case is in point against the defendant upon the question we have considered, and accords with the general principle, governing the liability of masters for the tortious acts of their servants. (Addison on Torts, 23; Smith on Master and Servant, 151; Story on Agency, § 452.)

The charge of the court that the defendant was responsible, for the excessive force used in ejecting the plaintiff from the car, assumed that there was lawful cause for his expulsion. The charge, in our opinion, was, under the proof in the case, correct, and is supported by the considerations, to which we have adverted, in considering the other exception.

We are not called upon in this case, to determine what the law is as to the master's responsibility, in a case where a conductor, though justified in using violence in expelling a passenger, wantonly and intentionally used unnecessary force to accomplish it, and where the justifiable and excessive force were parts of a single act. In this case that hypothesis is inadmissible. The evidence does not warrant the supposition that the conductor acted in bad faith or wantonly used unnecessary violence.

Opinion of the Court, per ANDREWS, J.

In Seymour v. Greenwood (7 H. & N., 356), it was held by the Court of Exchequer Chamber, that a master was liable for an injury caused, by the unlawful and violent conduct of his servant, in the performance of an act within the course of his employment. The case in its circumstances was quite like the case in question. The guard of the defendant's omnibus, in removing a passenger whom he deemed to be drunk, forcibly dragged him out and threw him on the ground, whereby he was severely injured. The passenger brought an action for the injury, and the defendant claimed, that he had not authorized, and was not liable for the acts of the servant. WILLIAMS, J., in pronouncing the unanimous opinion of the court, said: "We think there was evidence for the jury that the guard, acting in the course of his service as guard of the defendant's omnibus, and in pursuance of that employment, was guilty of excess and violence. not justified by the occasion, or in other words, misconducted himself in the course of his master's employment, and, therefore, the master is responsible. It is said, that though it cannot be denied, that the defendant authorized his guard to superintend the conduct of the omnibuses generally, and that such authority must be taken, to include an authority to remove any passenger, who misconducts himself, yet the defendant gave no authority, to turn out an inof fensive passenger, and the plaintiff was one. But the master, by giving the guard authority, to remove an offensive passenger, necessarily gave him authority to determine whether any passenger had misconducted himself. It is not convenient for the master personally to conduct the omnibuses, and he puts his guard in his place, therefore, if the guard forms a wrong judgment the master is responsible." (See, also, Limpas v. London General Omnibus Company, 1 H. & Colt., 526; Goff v. Great Nor. R'way Co., 30 L. J., Q. B., 148; Poulton v. London and South Western R'way Co., 2 L. R., 2 Q. B., 534.)

The remark of one of the judges in the case of Hibbard v. New York and Erie R. W. Co. (15 N. Y., 467), may not,

Statement of case.

when read in connection with the charge to which it referred be consistent with the views here expressed. But the case was decided upon another point, and it is not an authority for the doctrine stated by the learned judge.

The judgment should be affirmed.

All concur, but PECKHAM, J., not voting..
Judgment affirmed.

EMMA HOFFMAN, Respondent, v. WILLIAM HOFFMAN,

Appellant.

A decree of divorce obtained in another State, the defendant not being
served with process, and both parties at the commencement of the suit
and during its pendency being residents of this State, is invalid.
An attempt by the defendant in such suit, made in a court of the State
where decree was granted, to set it aside, which was defeated upon
technical grounds solely, does not affect the question.

The record of such decree is not conclusive as to jurisdiction, but the facts
therein stated giving the court jurisdiction may be disputed. This rule
is not in conflict with section 1, article 4, of Constitution of the United
States.

(Argued June 4th, 1871; decided September 2d, 1871.)

APPEAL from judgment of the late General Term of the first judicial district, affirming judgment entered upon decision of the court in favor of plaintiff.

The action is brought for a divorce upon the ground of adultery. The answer admits the adultery, but sets up a decree of divorce obtained by defendant in the State of Indiana. The facts appearing upon the trial are sufficiently stated in the opinion.

L. J. Chatfield, for the appellant, that under the Constitution of the United States (section 1, article 4) the Indiana decree was valid and binding here, Mills v. Duryea (7

Opinion of the Court, per PECKHAM, J.

Cranch, 481); Constitution, art. 4, § 1; Kemp's Lessee v. Kenedy (5 Cranch, 173); Mayhew v. Thatcher (1 Whea., 129); Cheever v. Cheever (9 Wallace, 108); 9 Pet., 8; 10 Pet., 449; The Mary, 9 Cranch, 126; 3 Cranch, 300; Black v. Black, Bradf. That such former adjudication is a bar. (Neafie v. Neafie, 7 John. Ch., 1; Perine v. Dunn, 4 id., 140; 2 Comst., 113; 4 Johns. Ch., 199; Noyes v. Butler, 6 Barb., 113.)

E. M. Wright, for respondent, that the Indiana decree was void for want of jurisdiction, Laws of Indiana, fol. 200; Shannon v. Shannon (Am. Law Reg. 1863, 180); S. C., 10 Allen Mass. R., 249; Frost v. Brisbin (19 Wend., 11); Chaim v. Wilson (1 Bosw., 673); Borden v. Fitch (15 Johns., 151); Bradshaw v. Heath (13 Wend., 406); Jackson v. Jackson (1 Johns., 424); Vischer v. Vischer (12 Barb., 640); McGiffert v. McGiffert (31 Barb., 69); Kerr v. Kerr (41 N. Y., 272); Sturgis v. Fay (16 Ind., 429); Beard v. Beard (21 Ind., 321); Forrest v. Forrest (25 N. Y., 501).

PECKHAM, J. There is but one question in this case. Is the judgment of divorce, obtained by the defendant against the plaintiff in the State of Indiana, of any force here? From the facts as found by the referee, and sustained by the proof, it appears that on the 7th day of April, 1857, the defendant applied to a court in Indiana for a divorce, and obtained a judgment therefor on the fifth of June following, within two months after presenting his petition. He obtained it upon the ground of adultery committed by this plaintiff.

But at the time of commencing his suit there, and while it was pending, both parties resided in the city of New York. No process was served upon this plaintiff in that suit; it appears she had no knowledge of it, and authorized no appearance in it.

Her subsequent attempt by a suit in the courts of Indiana, to set that judgment aside for fraud, has no bearing upon this