APPEAL from a judgment of the Supreme Court in favor of defendants, entered January 22, 1954, in Broome County, upon a decision of the court at a Trial Term (NEWMAN, J.), dismissing the complaint on the merits.
Robert E. Fischer for appellants.
James B. Gitlitz for respondents.
The plaintiffs appeal from an order, setting aside a verdict in their favor and dismissing the complaint in an action to recover damages for an assault committed by an employee of the defendants, and from the judgment entered pursuant to the order.
The first four defendants named in the title are copartners owning and operating a bowling alley in the city of Binghamton, New York, known as the State Bowling Center. The defendant Randall is the general manager of the Bowling Center. The Bowling Center has twenty bowling alleys at which 200 people bowl in an evening in two shifts. Immediately adjacent to the alleys, there are benches upon which the bowlers sit between games. Behind the benches are several rows of seats for spectators. In an adjoining room, there is a luncheonette where food and beer are served.
Overlooking the bowling alleys is a desk at which a supervisory employee known as a 'desk man' is stationed. He
collects the money from the team captains and designates the alleys at which the teams are to bowl.He also makes announcements over the public address system, and generally is in charge of the Bowling Center when the manager is not present. The desk man serves as the assistant manager and is sometimes referred to by that title.
On September 20, 1952, three weeks before the occurrence of the assault which gave rise to this action, a man named Finkle applied to the defendant Randall for a job. He had just come to the city and had no permanent place of residence and he had no funds. Randall admitted that Finkle had all the characteristics of a 'floater' except that he was 'a little bit better dressed than a floater'.
Finkle did not have any letter of reference from any former employer; in fact, he evaded the question and did not give the name of any former employer when Randall asked him about it. Randall made no other inquiries except a request for Finkle's social security number. Finkle was hired as a pin setter. After being so employed for a week, he was promoted to desk man and assistant manager, next in command to Randall, the general manager. No inquiry was made as to his history or background prior to his promotion to desk man and assistant manager. There was some evidence that during the period of his employment, Finkle had told a fellow employee that he had 'had trouble with the police agencies in Albany' and that this information had been reported to the general manager.
Randall had rented a room in his own apartment to Finkle and, on October 12, 1952, while they were riding home together, Finkle made some statements, which were obviously irrational or confused, to the effect that 'the Democrat organization' was 'holding his wife in Albany' and 'wouldn't let him get to see her'. Randall heard this statement but 'took it as a joke'; he did not pursue the matter with Finkle and he made no further inquiry of anyone.
The next evening, October 13, 1952, the plaintiffs, Mr. and Mrs. Vanderhule, went to the Bowling Center shortly before nine o'clock for a game in a league in which Mr. Vanderhule was a member. Upon their arrival, Finkle was acting as the desk man, during the first series of games. During the second series, he was replaced by another man at the desk and Finkle temporarily served as a pin setter, because of an emergency which had arisen due to the absence of one of the pin boys. ...