Opinion
May 1, 1942.
Present — Martin, P.J., Townley, Glennon, Cohn and Callahan, JJ.
Judgment unanimously reversed, with costs to the appellant, and a new trial ordered. Under the circumstances disclosed by the record, the question whether the individual defendant was acting within the scope of his employment at the time of the alleged assault was one of fact which should have been submitted to the jury. ( Osipoff v. City of New York, 286 N.Y. 422, 431.)