
    Elizabeth Cunningham, as Administratrix of David Cunningham, Deceased, Appellant, v. The Sheltering Arms, Respondent.
    First Department,
    December 17, 1909.
    Negligence — charitable institutions—when not liable for negligence of servants. ■
    A charitable institution, from, which the directors and organizers receive no profit is not liable for injuries to a recipient of its charity, caused by the negli-' gence of one employed in furtherance of the charitable object, if duecáre'has been used, in selecting the employee.
    This is true, although the mother of the injured person contributed toward the ■ expense of caring for him.
    Appeal by the plaintiff, Elizabeth Cunningham, as administratrix,' etc., from an order of the Supreme Court, made at the Hew York Trial.Term'and entered in the office of the clerk'of the county of Hew York on the 12fch day of January, 1909, setting aside, the verdict of a jury in favor of the plaintiff, .for $2,000. and granting a new trial. .
    
      The opinion delivered by the trial court is reported in Cunningham v. Sheltering Arms (61 Misc. Rep. 501).
    
      John V. Judge, for the appellant.
    
      Frank E. Blackwell, for the respondent.
   Scott, J. :

The plaintiff appeals from an order setting aside a verdict in her favor and ordering a new trial.

The action is the usual statutory one for the death of plaintiff’s intestate alleged to have resulted from the negligence of one of the defendant’s servants. .

The defendant is a charitable institution organized and maintained for the care of children. The deceased was the infant son of plaintiff, by whom he had been placed in defendant’s care. His death resulted from a fall from a window during the temporary, absence from the room of a matron or attendant. Upon the evidence it is more than doubtful whether the attendant was guilty of negligence or whether the accident was the natural and probable result of any act of hers, or one which she should have foreseen. There is a broader ground, however, upon which the order appealed from can be sustained, and one on which we prefer to place our decision since it will dispose of the litigation. As has been said, the defendant is a benevolent and charitable organization, and it did not lose this character because the mother of deceased contributed towards the expense of his care. {Noble, v. Hah/nema/nn Hospital, 112 App. Div. 663.) It appeared that the attendant to whom the plaintiff seeks to attribute negligence was a person of long experience in the care of children in institutions, and no question is made as to her general capacity. It is a well-established rule, upheld by a number of decisions in this and other States, that a charitable institution, from which no financial benefit accrues to Its directors or organizers, is not liable for an injury to a recipient of its charity, resulting from the negligence of a person employed by the institution in the furtherance of its objects, providing that due care had been exercised in selecting the employee. Whatever may originally have been the reason, for the rule, it is now too firmly established to be questioned here and should be considered as constituting an element of the relation between the benefactor and the beneficiary.'

The appellant places great reliance on Ward v. Saint Vincent's Hospital (39 App. Div. 624; 65 id. 64; 78 id. 317) and Kellogg v. Church Charity Foundation (128 id. 214). Neither of'these cases resembles the present. In the IFarYcase it was said over and over again that the "defendant’s liability, if any, rested upon its special contract with the plaintiff, and not upon tort. In the Kellogg case the plaintiff was not a beneficiary of the defendant, but a stranger who was run into and injured by an ambulance driven by one. of the defendant’s servants. Hence the relation of benefactor and beneficiary, upon which -the exemption rests, was absent. That relation clearly existed between plaintiff’s intestate and this defend- ■ ant, and the fact of that relation exempts the defendant from liability even if there was negligence on the part of its servant. No evidence could change this fact and it would be useless to send the case back for another trial.

. The order appealed from will, therefore, be affirmed, in so far as it set aside the verdict, and the complaint dismissed, with costs to he respondent in this court and the court'below.

Ingraham, McLaughlin, Clarice and Houghton, JR, concurred.'

Order affirmed as stated in opinion and- complaint dismissed,, with costs in this court and in the court below. Settle order on notice.  