
    Edward F. McCarton, as Administrator, etc., of Edward McCarton, Deceased, Plaintiff, v. The City of New York and the Board of Education of the City of New York, Defendants.
    First Department,
    March 8, 1912.
    Municipal corporations — negligence—nuisance—fall of flagpole erected on school building, city of New York—city not liable — liability of board of education — responsibility for neglect of statutory duties.
    The objection that a notice of intention to bring an action against a city did not comply with the statute cannot be taken for the first time upon appeal, where the complaint alleged that due notice as required by law was given, for had the objection been taken at trial the plaintiff could have amended his pleading so as to show full compliance with the statute.
    As under the charter of the city of New York the care and control of public school buildings is given to the board of education and as suits in relation to such property must be brought in the name of said board, although the title to the property is vested in the city — of which charter provisions the court will take judicial knowledge — the city itself is not liable for the death of a person caused by the fall of a defective flagpole erected on a school house.
    But an action to recover for a death so caused lies against the municipal board of education either upon the theory that the defective flagpole was a nuisance if originally unsafe, or upon the theory of negligence if it was maintained with knowledge that it had subsequently become dangerous.
    
      It seems, the board of education of said city is liable for the neglect of persons whom it employs to perform duties imposed upon it by statute.
    Motion by the plaintiff, Edward F. McCarton, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term in October, 1911.
    
      Herbert C. Smyth [Roderic Wellman with him on the brief], for the plaintiff.
    
      Loyal Leale [Terence Farley with him on the brief], for the defendants.
   Laughlin, J.:

Counsel for the defendants attempt to sustain the action of the trial court upon the ground that the complaint fails to allege facts showing a compliance with the requirements of chapter 572 of the Laws of 1886 with respect to filing a notice of intention to bring the action with the corporation counsel and of section 261 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 677) with respect to the presentation of the claim to the comptroller. It is alleged in the complaint that due notice of the accident and of the claim arising thereunder and of plaintiff’s intention to bring an action was given as required by law to the comptroller and to the corporation counsel and that more than thirty days have elapsed and that the claim has not been adjusted. The record does not show that this objection was taken on the trial. If it had been there taken the allegations of the complaint are sufficient to warrant an amendment to show full compliance with the requirements of these statutory provisions, and, therefore, the objection cannot prevail here.

On the trial a jury was impaneled and counsel for the plaintiff opened the case. Thereupon counsel for defendants moved separately in behalf of each to dismiss the complaint on the ground that actionable negligence was not shown and in behalf of the city on the further ground that it was not liable for acts or omissions of the board of education. The motions were granted and an exception was duly taken and counsel for plaintiff insisted upon his right to go to trial upon the theory of negligence on the part of each defendant; but he was not permitted to do so and an exception was also taken to the refusal. Counsel for plaintiff now contends that he was entitled to go to the jury not only upon the theory of negligence but also on the ground of liability for a nuisance. After the court dismissed the complaint counsel for plaintiff was not required to ask leave to proceed with the trial, and the rights of his client would have been fully preserved by resting on the exception to the ruling. The only importance to be attached to his request to proceed with the trial is as indicating the theory of the action.

It appears that on the 30th day of October, 1908, the decedent was passing along One Hundred and Sixty-sixth street, a public highway in the borough of the Bronx, New York, and was struck by a flagpole about seventy feet in length, which fell from, the roof of the Morris High School adjacent to the public street, and he died from the injuries inflicted. The action is to recover the pecuniary loss sustained by his father.

It is alleged in the complaint that the defendant board of education is a corporation duly organized under the laws of New York, and that both defendants “own-and control” the high school, and the land upon which it is erected, for educational purposes; that the decedent’s death was caused “by the negligence and wrongful acts of the defendants, their agents and servants, in the erection, maintenance and control of said flag pole and its appurtenances,” and that the defendants “maintained said building and the flag pole thereon with the said flag pole in an unsafe, threatening and dangerous condition, for a long period of time prior to said accident, and the defendants had knowledge thereof.” Ordinarily these allegations would be sufficient to entitle the plaintiff to go to trial on the theory that he might be able to prove the facts; but where a municipal corporation is a defendant, and its rights, powers and duties in the premises are prescribed by public law of which the court takes judicial notice, the question as to whether it is chargeable with negligence or with having created, or with maintaining a nuisance with respect to a building used for educational purposes is to be determined by the provisions of the statute; and where, as here, it appears that the city could not have erected or maintained the building and that the. entire custody and control of the building was in the other defendant, the court was justified in dismissing the complaint as to the city without going through the useless ceremony of receiving proof, or offers to prove, on the part of the plaintiff. By virtue of the provisions of section 1055 of the Greater New York charter the title to all property, both real and personal, acquired by purchase, bequest or devise, for school or educational purposes is vested in the city, but the care and control of the property is given to the board of education, and it is expressly provided that suits in relation to such property shall be brought in the name of said board. Section 1064 of the charter (as amd. by Laws of 1903, chap. 43) provides that the board of education shall submit estimates of funds required for educational purposes for each fiscal year, and that it shall administer the moneys appropriated or available for such purpose. Section 1066 authorizes it to lease property required for educational purposes. Section 1067 authorizes the board of education to appoint a superintendent of school buildings and other subordinates and to suspend or remove them for cause, and section 1068 authorizes it to prescribe their duties, and sections 1071 and 1073 give the board directly, and through its appointee, the superintendent of school buildings, who is declared to be its executive officer and subject to the by-laws, control of the selection and acquisition of sites, and the preparation of plans for and erection of new buildings for school purposes and the alteration and repair of existing buildings; and the duty is expressly enjoined upon it to make such provision by its by-laws “as will secure prompt and efficient service for the * -x- * erection of new buildings for school purposes, and for the alteration and repair of existing buildings.” It is quite evident from these statutory provisions that the city could not be responsible for the acquisition or erection, or maintenance of the school building in question, and, therefore, it is not hable on the theory that it has erected or was maintaining a nuisance (see Uggla v. Brokaw, 117 App. Div. 586), and it follows that the city is not liable on the theory of negligence for the acts or omissions of the board of education. (Ham, v. Mayor, 70 N. Y. 459.)

I am of opinion, however, that the complaint states a good cause of action against the board of education. If it erected or maintained this flagpole, which was unfit for the purpose in that it was rotten and never should have been selected for such use, in a position to endanger the lives of those lawfully in the vicinity of the building, with notice, as alleged and as stated in the opening, that it was in an unsafe condition, it is clearly Hable, either upon the theory of having erected or of maintaining a nuisance, depending upon whether the original erection was unsafe, or the flagpole was maintained with actual knowledge that it was in a dangerous condition, or upon the theory of negligence, depending upon its failure to perform its statutory duty to provide for ‘ ‘ prompt and efficient ” repairs. (Ahern v. Steele, 115 N. Y. 203; Uggla v. Brokaw, supra; Wahrman v. Board of Education, 187 N. Y. 331; Bassett v. Fish, 75 id. 303.) Here, not only was the power given to the hoard of education to determine whether or not the school building should be used, but with respect to construction, alterations and repairs, and for its own negligence, at least, it is clearly liable. (Dillon Mun. Corp. [5th ed.] 2889; Higbie v. Board of Education, 122 App. Div. 483.) I do not deem it necessary at this time to consider at length whether the dictum in Wahrman v. Board of Education (supra), to the effect that the rule of respondeat superior does not apply to the board of education with respect to any of its “subordinate officers or servants” is sound and should be followed, but it would seem that the board must be liable for the neglect of those whom it employs to perform duties, not devolving on such employees, but upon it by statute. (See Higbie v. Board of Education, supra; Bieling v. City of Brooklyn, 120 N. Y. 98, 105 et seq.; Moest v. City of Buffalo, 116 App. Div. 657; affd., 193 N. Y. 615.)

It follows, therefore, that the exceptions to the dismissal of the complaint as against the city should be overruled and judgment directed for the city, and the exceptions to the dismissal as to the hoard of education sustained and a new trial granted, with costs to appellant to abide the event.

Clarke, McLaughlin, Scott and Miller, JJ., concurred.

As to the city, exceptions overruled and judgment ordered for the city; as to the board of education, exceptions sustained and new trial ordered, costs to plaintiff to abide event. Order to be settled on notice.  