Hamberg v. Singer Manufacturing Co. , 1888 N.Y. Misc. LEXIS 1091 ( 1888 )

Van Hoesen, J.

Pleadings must be'liberally construed with a view to substantial justice, (Code Civil Proc. § 519;) but the law will not assume in favor of a party anything that he has not averred, (Cruger v. Railroad Co., 12 N. Y. 190.) The pleader has framed this complaint with a clear conception of the law that makes the master liable for a wrongful act of the servant done with a view to the performance of the master’s work. He has inserted various allegations respecting the employment of the servant, and the duties that appertained to that employment, but, as I understand the complaint, it fails to aver that the assault was committed by the servant for the purpose of forwarding his master’s interest, and carrying out the work that he was employed to do. It ascribes a motive to the servant, and gives the plaintiff’s surmise as to the reason why the servant assaulted her; but there is no allegation that the servant, in making the assault, did, or thought he was doing, an act that his employment required him to do. It would seem that the servant beat the plaintiff because he had a quarrel with her, and that he was not doing, nor attempting to do, any act in the line of his employment when he made the assault. The demurrer is sustained, and judgment will be entered for the defendant, unless the plaintiff, within 20 days, pay the usual costs, and amend the complaint.