Opinion
April, 1928.
Judgment reversed upon the law, with costs, and complaint dismissed, with costs. It appearing from the testimony of the chauffeur who was called as a witness by plaintiff, and thereby certified as credible ( Potts v. Pardee, 220 N.Y. 431, 433), that his acts were not within the scope of his employment, appellant was not liable for his negligence, and the complaint should have been dismissed. ( Fluegel v. Coudert, 244 N.Y. 393; Psota v. Long Island R.R. Co., 246 id. 388.) In view of this disposition of the case, the appeal from the order denying defendant Becci's motion for a new trial is dismissed, Lazansky, P.J., Rich, Young, Kapper and Scudder, JJ., concur.