The opinion
Boardman, J. :
I concur in the result of this opinion. If, as a matter of law, the defendant was not legally exempt from liability, I am inclined to think that under all the evidence given it was a question of fact for the jury to determine whether the defendant’s servants were acting within the scope of their authority and duty. (Rounds v. D., L. and W. R. R. Co., 64 N. Y., 129—137; Jackson v. Second Avenue. R. R. Co., 47 id., 274, 277. If I am correct in this the court erred in deciding as a legal question that the act done *106 was within the scope of the servants’ employment, and in the discharge of their duty to the defendant.
Learned, P. j., dissented.
Judgment reversed, and new trial granted, costs to abide event.