
    Max Schuster, as Administrator of the Estate of Arnold L. Schuster, Deceased, Appellant, v. City of New York, Respondent.
    Argued February 25, 1958;
    reargued November 5, 1958;
    decided November 11, 1958.
    
      Upon original argument, Joseph N. Friedman and Harry H. Lipsig for appellant. Upon reargument, Albert Cohn, Harry H. Lipsig, Eugene J. Morris and Albert J. Rosenthal for appellant.
    I. Out of the chronicles of our jurisprudence there emerge both a common-law duty and a statutory direction to assist in the apprehension of wrongdoers. Invariably, however, both duty and direction have been coupled with the privileges of reward and protection. (United States ex rel. Marcus v. Hess, 317 U. S. 537; Marvin v. Trout, 199 U. S. 212; Southern Express Co. v. Commonwealth ex rel. Walker, 92 Va. 59; State v. Delano, 80 Wis. 259; Pollock v. Steam-Boat Laura, 5 F. 133; Worthington v. Scribner, 109 Mass. 487; Vogel v. Gruaz, 110 U. S. 311; Matter of Quarles and Butler, 158 U. S. 532; Ex Parte Yarbrough, 110 U. S. 651; Liddle v. Hodges, 2 Bosw. 537.) II. Reinstatement of the complaint on the grounds here urged will not submerge the city with unwarranted requests for protection, nor indeed will it deluge the court with illusory litigation. (Matter of Quarles and Butler, 158 U. S. 532.) III. Our jurisprudence has not bestowed upon municipalities immunity from liability arising out of misrepresentation. (Sharp v. Mayor of City of New York, 40 Barb. 256; Prest v. Inhabitants of Farmington, 117 Me. 348; Corns-Thomas Eng. & Constr. Co. v. County Ct. of McDowell County, 92 W. Va. 368; Long v. Inhabitants of Athol, 196 Mass. 497; McManus v. Philadelphia, 211 Pa. 394; City of Wheeling v. Casey Co., 74 F. 2d 794; 
      Matter of Evans v. Berry, 262 N. Y. 61; McCrink v. City of New York, 296 N. Y. 99; Bernardine v. City of New York, 294 N. Y. 361; Riker v. City of New York, 204 Misc. 878, 286 App. Div. 808; Bowles v. State of New York, 186 Misc. 295.) IV. Protection of life and property is the underlying principle behind all organized government. Even if we were to assume, therefore, that the protection of individuals from bodily harm at the hands of possible assailants is a matter within the discretion of the Police Commissioner, then his exercise of that discretion is subject to review by the courts. (Matter of Neagle, 135 U. S. 1; Kahan v. Wallander, 193 Misc. 190; Constantine v. v. City of New York, 116 Misc. 349; Delaney v. Flood, 183 N. Y. 323; Municipal Gas Co. v. Public Service Comm., 225 N. Y. 89; McCrink v. City of New York, 296 N. Y. 99; Runkel v. City of New York, 282 App. Div. 173.) V. Where an act (revealing to the general public that Schuster was the informer) is later shown to create a foreseeable risk of injury, the one performing such act (here the Police Department) has a duty to take reasonable measures to prevent the injury, and upon its failure to do so becomes liable for injury flowing therefrom. (Slavin v. State of New York, 249 App. Div. 72; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160.) VI. Though there be no duty to act at all, if one acts one must act reasonably and the failure to do so is actionable. (Glanzer v. Shepard, 233 N. Y. 236; Marks v. Nambil Realty Co., 245 N. Y. 256; Frazer v. Bader, 263 App. Div. 838; Dunham v. Village of Canisteo, 303 N. Y. 498; Foley v. State of New York, 294 N. Y. 275; Ritter v. State of New York, 204 Misc. 300; Mentillo v. City of Auburn, 2 Misc 2d 818; Benway v. City of Watertown, 1 A D 2d 465.) VII. In the special circumstances of this case, the police were required to assume a duty of ordinary care. (Bernardine v. City of New York, 294 N. Y. 361; McCrink v. City of New York, 296 N. Y. 99; Foley v. State of New York, 294 N. Y. 275; Lubelfeld v. City of New York, 4 N Y 2d 455.) VIII. The false representations of the police to Schuster are independently actionable. (Glanzer v. Shepard, 233 N. Y. 236; Hadcock v. Osmer, 153 N.Y. 604; Ultramares Corp. v. Touche, 255 N. Y. 170; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Churchill v. St. George Development Co. of Florida, 174 App. Div. 1; Bareham & McFarland v. Kane, 228 App. Div. 396; Sabo v. Delman, 3 N Y 2d 155.) IX. The complaint sufficiently alleges that respondent’s wrongs caused Schuster’s death. (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Stubbs v. City of Rochester, 226 N. Y. 516; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; Lowery v. Manhattan Ry. Co., 99 N. Y. 158.) X. The action was properly brought against the City of New York. (Bernardine v. City of New York, 294 N. Y. 361.)
    
      Peter Campbell Brown and Charles H. Tenney, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
    I. The complaint was properly dismissed since its allegations would not support a recovery of damages against the City of New York on any of the theories of liability relied on by plaintiff. II. The city is under no duty to provide police protection to any specific member of the community and its failure to do so is not a basis of civil liability. (Steitz v. City of Beacon, 295 N. Y. 51; Foley v. State of New York, 294 N. Y. 275; Murrain v. Wilson Line, 270 App. Div. 372, 296 N. Y. 845; Landby v. New York, N. H. & H. R. R. Co., 199 Misc. 73, 278 App. Div. 965, 303 N. Y. 1014; Runkel v. City of New York, 282 App. Div. 173; Runkel v. Homelsky, 286 App. Div. 1101, 3 N Y 2d 857; Rocco v. City of New York, 282 App. Div. 1012; Walsh v. Mayor of City of New York, 107 N. Y. 220; Ehrgott v. Mayor of City of New York, 96 N. Y. 264; Bernardine v. City of New York, 294 N. Y. 361.) III. The rule of nonliability extends to cases where police protection has been lessened or has terminated prior to the injury or death complained of. ( Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Glanzer v. Shepard, 233 N. Y. 236; Slavin v. State of New York, 249 App. Div. 72; McCrink v. City of New York, 296 N. Y. 99.) IV. The city owed Schuster no special measure of protection by reason of Ms role in the arrest of Sutton. (Worthington v. Scribner, 109 Mass. 487; Matter of Quarles and Butler, 158 U. S. 532; Ex Parte Yarbrough, 110 U. S. 651; Liddle v. Hodges, 2 Bosw. 537; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Matter of Rhinelander, 290 N. Y. 31.) V. Section 1848 of the Penal Law is inapplicable to the instant case since (1) Schuster had not been “ lawfully commanded to aid an officer in arresting ” Sutton, and (2) he was not shot “ in the course of aiding an officer ” in Sutton’s arrest. (Austin v. Goodrich, 49 N. Y. 266; City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, 294 N. Y. 678, 326 U. S. 720; Westchester Asphalt Distr. Corp. v. Yonkers Contr. Co., 4 A D 2d 774.) VI. The alleged representations by police officers may not serve as a basis for municipal liability since (1) they were not made within the scope of the officers’ employment; (2) they were mere expressions of opinion, not of fact, and (3) the averments of the complaint do not support and are.inconsistent with the allegation of the falsity of the supposed representations. (Jacobson v. Northwestern Pacific R. R. Co., 175 Cal. 468; Benz v. Kaderbeck, 241 App. Div. 583.) VII. Even if the complaint did contain the allegation that Schuster's name became known only or initially through disclosure by the police, it would still furnish no basis for municipal liability. (McCrink v. City of New York, 296 N. Y. 99; Lubelfeld v. City of New York, 4 N Y 2d 455.)
   Van Voorhis, J.

Plaintiff’s intestate supplied information to the Police Department of the City of New York leading to the arrest of a dangerous fugitive from justice known as Willie Sutton, a criminal of national reputation. Schuster’s part in Sutton’s capture was widely publicized. Schuster immediately received communications threatening his life, of which he notified the police. Three weeks later Schuster was shot and killed while approaching his home in the evening. There is no suggestion that Schuster was an underworld character. On the contrary, he appears to have been a public spirited young man who had studied Sutton’s picture on an FBI flyer that had been posted in his father’s dry-goods store, asking for Sutton’s whereabouts.

The complaint is drawn upon the theory that Schuster was shot in consequence of the information about Sutton supplied by Schuster to the police, and that the City of New York owes a special duty under the circumstances alleged to protect persons who have thus co-operated in law enforcement. It is alleged that the city failed to exercise reasonable care in supplying Schuster with police protection upon demand, that Schuster’s death was due to negligence of the city in recklessly exposing him to danger, in advising him that the threats upon his life were not seriously made, in failing to supply him with a bodyguard and in heedlessly imparting to him a false impression of safety and lack of danger. The action is not based on any absolute liability claimed to exist on the part of the city, but upon its alleged failure to use ordinary or reasonable care for his security.

This being a motion addressed to the sufficiency in law of the complaint, the objection taken by the city may be dismissed at once that plaintiff will be unable to prove that Schuster’s death was the result of his having informed upon Sutton. It is a sufficient answer to that objection that the complaint alleges that Schuster’s death did result from the negligence of the city previously stated. No more needs to be alleged in a pleading (Sandy v. Wicks, 256 App. Div. 1007). It would be premature to hold now that plaintiff will be unable to prove this allegation at the trial for the reason that no individual has been indicted thus far for Schuster’s murder. Plaintiff is entitled to a day in court upon this issue, which should not be prejudged in advance of trial. Perhaps by the time of the trial the identity of Schuster’s murderer will have become known and the cause of his act be further clarified. It might even be held, without identification of Schuster’s assailant, that the probability is so great of his having been shot by reason of his disclosures resulting in Sutton’s capture, that a question of fact would be created on this issue. Questions such as that should be reserved for a trial, and cannot be disposed of by a motion to test the legal sufficiency of the complaint on which all of the allegations of fact must be assumed to be true.

The single issue now presented is whether a municipality is under any duty to exercise reasonable care for the protection of a person in Schuster’s situation. Predictions of dire financial consequences to municipalities are waved in our faces if Schuster’s estate is allowed to recover for his death. An array of authorities is cited on the proposition that there is no liability to the general public from failure of police or fire protection (Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N. Y. 845; Steitz v. City of Beacon, 295 N. Y. 51; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; Rocco v. City of New York, 282 App. Div. 1012). One might think that the floodgates of liability have been opened in negligence and compensation cases against municipalities and other defendants where the liability is less clear than it is under the allegations of this complaint (cf. 31 Texas L. Rev. 630). In our view the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration. If it were otherwise, it might well become difficult to convince the citizen to aid and co-operate with the law enforcement officers (see Note, 58 W. Va. L. Eev. 308). To uphold such a liability does not mean that municipalities are called upon to answer in damages for every loss caused by outlaws or by fire. Such a duty to Schuster bespeaks no obligation enforcible in the courts to exercise the police powers of government for the protection of every member of the general public. Nevertheless, where persons actually have aided in the apprehension or prosecution of enemies of society under the criminal law, a reciprocal duty arises on the part of society to use reasonable care for their police protection, at least where reasonably demanded or sought. Such a duty would be performed by the regular organs of government, in this instance, by the City of New York. The duty of everyone to aid in the enforcement of the law, which is as old as history, begets an answering duty on the part of government, under the circumstances of contemporary life, reasonably to protect those who have come to its assistance in this manner.

Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N. Y. 726); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N Y 2d 455); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N. Y. 498); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N. Y. 114); to the estate of a man arrested for public intoxication who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O’Grady v. City of Fulton, 4 N Y 2d 717); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A D 2d 465); and to a bystander injured while directing traffic at the instance of a police officer (Adamo v. P. G. Motor Freight, 4 A D 2d 758). In McCrink v. City of New York (296 N. Y. 99) a city was held liable for negligently having omitted to discharge a police officer by whom, plaintiff’s intestate was shot. In Meistinsky v. City of New York (309 N. Y. 998) the estate of a hold-up victim recovered who had been killed by an untrained officer’s bullets. Negligence of the city was found in its omission to use reasonable care in training the police officer so that he could shoot straight and hit the criminal instead of his victim. None of these actions could have been brought until after the waiver of governmental immunity by section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N. Y. 361), but in each of them liability arose from negligence of a city in the exercise of the police power, and in at least two of them the negligence consisted in nonfeasance rather than in misfeasance (McCrink v. City of New York, supra; Meistinsky v. City of New York, supra).

That distinction at best furnishes an incomplete formula, as the opinion of the court by Chief Judge Cabdozo says in Moch Co. v. Rensselaer Water Co. (supra, p. 167). The opinion in the Mock case states: “If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward (Bohlen, Studies in the Law of Torts, p. 87).”

In a situation like the present, government is not merely passive; it is active in calling upon persons “in possession of any information regarding the whereabouts of” Sutton, quoting from the FBI flyer, to communicate such information in aid of law enforcement. Where that has happened, as here, or where the public authorities have made active use of a private citizen in some other capacity in the arrest or prosecution of a criminal, it would be a misuse of language to say that the law enforcement authorities are merely passive. They are active in calling upon the citizen for help, and in utilizing his help when it is rendered. They have gone forward to such a stage, paraphrasing the opinion in the Mock case (supra), that inaction in furnishing police protection to such persons would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury. Under such circumstances, we there said “there exists a relation out of which arises a duty to go forward”. Such a relationship existed here. The duty of Schuster to aid in law enforcement by informing the police of the whereabouts of Sutton is implied by the decision in Matter of Babington v. Yellow Taxi Corp. (250 N. Y. 14). For present purposes it matters little whether this duty be described as legal or moral (People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188, 197, 199-200).

The reciprocal governmental duty to take reasonable measures to assure protection, to be sure, did not develop into enforcible legal liability until government waived its immunity from suit by the adoption of section 12-a (now § 8) of the Court of Claims Act in 1929, nor was the effect of such waiver fully understood until the decision in 1945 of Bernardine v. City of New York (supra). This waiver of governmental immunity removed the bar that previously prevented actions based on negligence of the police and made possible recoveries in the cases which have been cited. In one sense all of those causes of action grew out of the waiver of governmental immunity. But they were not created by waiver of governmental immunity, but by the common law, which

“is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star has always been the rule of right and wrong, and in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most admirable features.” (11 Am. Jur., Common Law, § 2, pp. 154-155.)

While governmental immunity remained in effect, this type of court action remained in abeyance. It remained in abeyance not on account of absence of duty on the part of a municipality to the injured or deceased person, but for the reason that where the factual basis of the claim was involved in the performance of a governmental function (such as police duty), the State had not permitted itself or its political subdivisions or municipal corporations to be sued. Where the immunity was removed, this bar no longer stood against the enforcement of civil liability arising from breach of a duty that existed before, but which could not be enforced until the immunity was waived.

Even before the removal of governmental immunity, the Supreme Court of the United States had occasion to declare the duty of government toward a private citizen who reports a violation of law to the law enforcement authorities. The case of Matter of Quarles and Butler (158 U. S. 532) concerned the prosecution of persons who by concerted action conspired to prevent a private citizen from informing against a criminal. Quoting from its opinion in Ex Parte Yarbrough (110 U. S. 651), the United States Supreme Court said in the Quarles case that it is the duty of government to see that a private citizen may exercise freely the right to notify the enforcement authorities of law violations,

“and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practiced on its agent”.

The Quarles case (supra) envisages a civic duty as well as a right to inform, and contemplates that the informant shall be protected on account of doing so. Although not employed as a sleuth, such a person comes into the relationship of the government’s “agent”.

Such a duty on the part of government to persons aiding in law enforcement is recognized by section 1848 of the Penal Law. That section creates an absolute liability against municipal corporations for damages arising from the personal injury or death of persons injured or killed while aiding policemen at their direction in making arrests. The existence of some duty on the part of the private citizen to assist in law enforcement is so plain that this statute makes it a misdemeanor to refuse to aid a police officer upon his command. This statute goes farther in some respects than the cause of action alleged in the instant complaint, in that it does not rest the liability of the municipality upon its negligence but imposes liability whenever such a person is injured or killed while aiding an officer in making an arrest. It is true that Schuster’s case does not fall within the coverage of this statute, inasmuch as he was not shot while Sutton was being arrested but three weeks later. He was commanded in a certain sense to assist in Sutton’s apprehension, in view of the widely published notices calling upon all private citizens to report Sutton’s whereabouts to the public authorities. If the case fell within this statute, negligence would not have to be established against the City of New York in failing to supply police protection to Schuster, or in advising him that such protection was not necessary; the city would have had to pay to his estate upon merely showing that he had been called upon to aid in Sutton’s arrest and had been killed while doing so. This statute does not measure the entire length and breadth of the city’s liability for negligence of the police, as the cases cited earlier in this opinion show. The existence of section 1848 of the Penal Law does not defeat plaintiff’s common-law cause of action. On the contrary, it reflects a public policy that municipalities shall respond in damages to private citizens or their estates who have been injured and killed as a result of aiding in law enforcement. This statute contains no language barring plaintiff’s common-law remedy. The rule is that “A statute in the affirmative, without any negative expressed or implied, takes away no preexisting rights or remedies; as a general rule, it operates merely to furnish an additional remedy for the enforcement of a right” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 34). This commentary continues: The affirmative statute is merely declaratory and does not repeal the common law relating to the subject; on the contrary, the two rules coexist. In other words, where a remedy existed at common law for the wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or a summary or more efficient remedy for the party aggrieved, but does not in terms or by necessary implication deprive him of the remedy which existed at common law, the statutory remedy is considered as merely cumulative, and the party injured may resort to either at his election” (citing Tremain v. Richardson, 68 N. Y. 617, and other cases).

Section 1848 of the Penal Law, while it recognizes a duty on the part of municipal corporations to persons who are killed or injured from aiding in the apprehension of criminals, neither expressly nor by implication repeals the common-law remedy. It does not purport to cover the same ground as the cause of action alleged in the complaint, and thereby to preclude the maintenance of a common-law action. The statute goes farther in some respects, by making liability absolute to those who come within its terms. The instant action is based on negligence. It is grounded on negligence of the police in the failure to exercise reasonable care for the protection of Schuster after he had received threatening letters as a result of its becoming publicly known that he had been instrumental in the arrest of Sutton. In contrast, the statutory cause of action lies in cases to which it applies even if the police and other public authorities have taken the utmost care. This in itself indicates that no implied exclusion of a common-law remedy for negligence could have been intended, inasmuch as the statute has nothing to do with negligence. The statute and the common-law right of action are different in scope. What is important is that the governmental policy behind the statute indicates care and solicitude for the private citizen who co-operates with the public authorities in the arrest and prosecution of criminals. That is the bearing which section 1848 of the Penal Law has on this case. Statutes have played their part in the formation of the common law, and, like court decisions that are not strictly analogous, sometimes point the way into other territory when the animating principle is used as a guide. (Michalowski v. Ey, 4 N Y 2d 277, 282, citing Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 385-386; Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 13.) Here Schuster’s case is within the spirit if not the coverage of section 1848 of the Penal Law. The remedy supplied by that section is not available to plaintiff, but the care and solicitude which it manifests toward those who aid in law enforcement dispels any inference that the public policy of the State is the other way. This section contains nothing which implies that the Legislature intended to nullify plaintiff’s common-law remedy for negligence under the circumstances described.

The judgment appealed from should be reversed, and defendant’s motion to dismiss the complaint should be denied, with costs in all courts.

McNally, J. (concurring).

I concur in the opinion of Van Voorhis, J., for the reasons stated therein and on an additional ground. The assumption by the respondent of the partial protection of plaintiff’s intestate under the circumstances of this case carried with it the obligation not to terminate such protection if in the exercise of reasonable care it was apparent that its acceptance of the information furnished and services rendered by plaintiff’s intestate and its public acknowledgment of his role, confirmed by the assumption of his partial protection by the respondent, either enlarged or prolonged the risk of bodily harm to the plaintiff’s intestate. It is now clear that sovereign immunity is unavailable to the respondent in respect of active negligence even in regard to or in the discharge of a governmental function. It is equally clear that it is immaterial that the respondent’s duty in regard to preserving public peace is a governmental function when in the negligent discharge of that duty personal injuries result. (Bernardine v. City of New York, 294 N. Y. 361; Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N. Y. 845). The voluntary assumption of plaintiff’s intestate’s partial protection carried with it the obligation to exercise reasonable prudence in regard to the foreseeable risks engendered thereby. “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all”. (Glanzer v. Shepard, 233 N. Y. 236, 239; Marks v. Nambil Realty Co., 245 N. Y. 256, 258.)

At this time every favorable inference is required to be indulged to sustain the complaint. As presently drawn it enables proof that Willie Sutton was a notorious and dangerous criminal at large associated with persons having a reputation for violence and likely to seek revenge against any person instrumental in his identification and apprehension; that plaintiff’s intestate, a law abiding citizen with no reason to anticipate harm from any source, conveyed information to the respondent resulting in the apprehension of Willie Sutton; that the role of plaintiff’s intestate was publicized with the knowledge and co-operation of the respondent and publicly confirmed by the respondent’s assumption of partial protection of plaintiff’s intestate. There was thus set in motion a series of events which it may be reasonably found had implications of danger to the person of plaintiff’s intestate which were reasonably foreseeable and contributed to in some measure by respondent’s conduct. (O’Neill v. City of Port Jervis, 253 N. Y. 423, 433.) Moreover, the seemingly difficult and dangerous position in which plaintiff’s intestate was placed was unnecessarily enhanced by representations on the part of various members of the Police Department that he was not endangered. These representations are akin to that made by the surgeon to the father of the infant plaintiff in Meiselman v. Crown Heights Hosp. (285 N. Y. 389) where the surgeon said “that the boy did not need further hospitalization” and where this court held (p. 395): “At least, the jury might have found that the defendants had prematurely and willfully discharged themselves from attention to the case while the patient was desperately ill and before he was cured without giving information or advice as to subsequent treatment or the desperate and dangerous condition and character of the disease”. Here a jury might find that the defendant prematurely withdrew partial protection of plaintiff’s intestate while he was in a state of danger brought about in some measure by respondent’s acts. (See, also, Carpenter v. Blake, 75 N. Y. 12, 22, 23.) Whether the exposure of plaintiff’s intestate was enhanced by the respondent and whether it subsisted at the time the partial protection was suspended by the respondent present factual issues. “The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good”. (Moch Co. v. Rensselaer Water Co., 247 N. Y. 160, 168.)

It is to be noted that the plaintiff was shot and killed by an unknown person or persons on March 8, 1952, a period of 19 days after his identification of Willie Sutton, and it cannot be said at this time that the death of plaintiff’s intestate is too remote in respect of the time that he informed the respondent. The death of plaintiff’s intestate may have been caused by circumstances unrelated to respondent’s conduct with regard to plaintiff’s intestate. At this time we need only decide that the evidence admissible under the allegations of this complaint may support a finding with reasonable certainty that the death and injuries of plaintiff’s intestate were proximately caused by respondent’s conduct; the fact that other proximate causes may be established does not preclude plaintiff’s reliance on those attributable to the respondent. (Dunham v. Village of Canisteo, 303 N. Y. 498; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7; Stubbs v. City of Rochester, 226 N. Y. 516, 526.) The presence of several bases of proximate cause merely serves to emphasize that a factual question is present. (Carlock v. Westchester Light. Co., 268 N. Y. 345, 349.)

The judgment appealed from should be reversed and defendant’s motion to dismiss the complaint should be denied, with costs in all courts.

Chief Judge Conway (dissenting).

This action was instituted by plaintiff, as administrator of the estate of his son, Arnold L. Schuster, to recover damages against the City of New York for the son’s alleged wrongful death and conscious pain and suffering. Young Schuster was shot and killed following the arrest of a notorious criminal, Willie Sutton. It was through Schuster’s recognition of Sutton that the police became aware of the latter’s whereabouts and were able to apprehend him. The killing took place on March 8, 1952 while Schuster was walking in the vicinity of 45th Street and 9th Avenue, Brooklyn. The assassin is still at large and his identity remains unknown.

Four causes of action are set forth in the complaint. The first cause of action—for wrongful death—is predicated on averments that the intestate was killed because the police of the City of New York, with knowledge that Sutton was an unusually dangerous character who associated with an unusually dangerous group of persons, and with knowledge that threats had been made against the intestate’s person and life following the arrest of Sutton, failed, neglected and even refused on demand to furnish him the protection called for by the situation. The second cause of action is derived from the same factual presentation as the first, but seeks a recovery of damages for pain and suffering sustained by plaintiff’s intestate in the interval between the time he was shot and the time he died. The third cause of action—for wrongful death—is based upon allegations that the police falsely represented to the intestate that he was not in danger because of the threats, as a consequence of which he was induced to go on to a public highway where he was shot. The fourth cause of action derives from the same factual recitation as the third, but seeks a recovery of damages for pain and suffering sustained by plaintiff’s intestate prior to Ms death.

The sole issue to be determined by this court is whether the complaint was properly dismissed on motion made under rule 106 of the Rules of Civil Practice for failure to state facts sufficient to constitute a cause of action.

It is well settled that the State’s waiver of sovereign immunity by section 8 of the Court of Claims Act has rendered the defendant municipality answerable, equally with individuals and private corporations, for the wrongs of its officers and employees (Steitz v. City of Beacon, 295 N. Y. 51, 54). The waiver of immunity has, however, been accompanied by a provision that liability be determined in accordance with the same rules of law as [are] applied to actions in the supreme court against individuals or corporations * * *.” (Court of Claims Act, § 8.) Accordingly, for plaintiff to recover against the city it must be established that there was a duty running from the city to plaintiff’s intestate and that such duty was violated.

Section 435 of the New York City Charter enumerates the duties of the Police Department and force in these words: “The police department and force shall have the power and it shall be their duty to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks and places; protect the rights of persons and property, guard the public health, preserve order at elections and all public meetings and assemblages; subject to the provisions of law and the rules and regulations of the commissioner of traffic, regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; remove all nuisances in the public streets, parks and places; arrest all street mendicants and beggars; provide proper police attendance at fires; inspect and observe all places of public amusement, all places of business having excise or other licenses to carry on any business; enforce and prevent the violation of all laws and ordinances in force in the city; and for these purposes to arrest all persons guilty of violating any law or ordinance for the suppression or punishment of crimes and offenses.”

Clearly, the foregoing statute places the police force of the City of New York under a broad duty to protect the general public from crime, including homicide. However, for plaintiff to succeed in this suit more must be shown. That is, it must be demonstrated that the duty imposed upon the police force to protect the general public inures to a member of the public individually, for the city cannot be held liable to plaintiff unless the police force owed his intestate a duty of protection against homicide. It will be remembered that this court has held that a statutory duty owing to the public as a whole does not run to the individual members thereof “in the absence of language clearly designed to have that effect”. (Steitz v. City of Beacon, 295 N. Y. 51, 54, 55, supra.) In the present case we cannot find any language clearly designed to impose upon the city the crushing burden of an obligation such as that which plaintiff claims exists in favor of his intestate. Special Term has aptly noted: “The right of the public generally to he safeguarded against burglaries does not give a cause of action to the individual whose home has been burglarized.” Similarly, the right of the public generally to be safeguarded against murder does not give a cause of action to the next of kin of one who has been murdered. The language of the Charter provision here, like the language of the Charter provision in the Steits case (supra, pp. 55-56), “connotes nothing more than the creation of departments of municipal government, the grant of essential powers of government and directions as to their exercise.”

“Such enactments do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyment of rights and privileges to which they are entitled only as members of the public. Neglect in the performance of such requirements creates no civil liability to individuals (Restatement of Torts, § 288; Moch Co. v. Rensselaer Water Co., supra; Taylor v. Lake Shore & Mich. S. Ry., 45 Mich. 74; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767; cf. City of Rochester v. Campbell et al., 123 N. Y. 405, and Troeger v. Prudential Insurance Co. of America, 154 Misc. 537, which cites Restatement of Torts, § 288).” (Steitz v. City of Beacon, 295 N. Y. 51, 55-56, supra.)

The majority opinion is premised on the idea that “the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals once it reasonably appears that they are in danger due to their collaboration.” Apparently the majority proposes to leave it to a jury to determine (1) when it reasonably appears that the “collaborator” is in danger and (2) whether the public has exercised reasonable care for the protection of such person. We cannot agree that the public is under any such special duty.

Certainly, no statute imposes such a special duty on the public and we are unable to find any warrant in common law for the imposition of such a special duty. The majority holds that such duty is owed to the individual since there is imposed upon the individual a duty to aid in the enforcement of the law. We disagree with this sweeping premise and, so, reject the proposition as unsound. Our State does not put its residents under any duty to take steps either to prevent the commission of crime or to bring the offender to justice, after its commission. The common-law crime of misprision of felony, which made it criminal conduct not to prevent a felony from being committed or not to bring the felon to justice, has not been carried into our Penal Law. Reward offers, for the capture of a convicted criminal or an accused, are not made payable to those (such as police officers) legally obligated to perform the act called for in the offer. However, they are payable to private citizens for the very reason that such persons are not legally bound to aid in the apprehension of wanted men. As Corpus Juris Secundum states (77 C. J. S., Rewards, § 34): “The general rule is that when a reward is offered to the public, as most rewards are, it may be accepted by anyone who, under its terms and conditions, performs the services required, as, for example * * * the apprehension of an offender * * *. [A]s an exception to the general rule, persons whose duty it already is to do that for the doing of which the reward is offered are not entitled to claim the reward.” The offer of a reward, rather than the imposition of a legal duty, has been the modern means employed to induce private citizens to aid the police in the enforcement of the law. The thought behind rewards is that the offer of a monetary consideration will activate citizens possessed of the desired information, but fearful of disclosing it, into assuming such risks as may flow from their co-operation with the authorities. Thus, the reward is the quid pro quo not only for the information disclosed but for the assumption of the risks of disclosure as well. The public is not put under an additional special duty of protecting the recipient of the reward.

We recognize, of course, that countless numbers of persons willingly identify those accused of crime, without thought of monetary reward. Such persons are undoubtedly aware of the fact that they, themselves, are the beneficiaries of their own acts, for every resident of a community is benefited by the apprehension, conviction and incarceration of lawless persons at large in the community. One thing is certain—whether the citizen or resident who co-operates with the police in identifying a criminal does so out of a selfish motive or out of an altruistic motive, in so doing he is not discharging a duty imposed upon him by law. Thus falls the premise of the majority to the effect that the duty of everyone to aid. in the enforcement of the law begets an answering duty on the part of government reasonably to protect those who come to its assistance. It is true that under certain circumstances a person is placed under a legal duty to aid the law enforcement authorities, i.e., where commanded by an officer to aid him in arresting any person, or in retaking any person who has escaped from legal custody, or in executing any legal process (Penal Law, § 1848). Having imposed such a duty on individuals, the Legislature has imposed upon the State a reciprocal duty to pay damages to any individual injured as a consequence of obeying the command, or, if death results, to pay damages to the personal representative of the deceased. Section 1848 of the Penal Law is not applicable here for the reasons that (1) the intestate’s acts in connection with the arrest of Sutton were not performed pursuant to the command of an officer but were voluntary in nature and (2) the intestate’s death did not arise out of and within the course of the arrest within the meaning of section 1848 of the Penal Law—his death occurred several weeks after the arrest had been made.

As we have said, the risk attendant upon co-operation with the law enforcement officials is assumed daily in our criminal courts by countless numbers of persons. Concededly, some of these persons do so in obedience to a subpoena and, so, are acting in pursuance of a legal duty. However that may be, and even assuming that the citizenry is under a duty to aid law enforcement officials, to hold that the countless numbers of persons who co-operate with law enforcement officers are entitled to special police protection would be to impose upon the municipality an unreasonable burden—a burden which would incapacitate the entire existing police force and leave the general public without police protection.

Duties have their genesis in concepts of reasonableness. It would be unreasonable, if not impossible, for a community to support a police force of the dimensions required to discharge such a duty. At least three policemen working around the clock would be required for each witness in each such case. Reasonableness demands that the need for special police protection be left to the absolute discretion of the Police Department. It is a well-known fact that few witnesses or informers are murdered or assaulted by reason of their having assisted in the enforcement of the law. This is some evidence of the fact that, by and large, the Police Department exercises sound discretion in these matters. Now, it may be argued that since there are few deaths or assaults the city can well afford to pay damages to the one assaulted or to the estate of the one killed. That, however, is not the question. The question is whether the duty of furnishing special police protection is to be imposed upon the public. If such duty exists special protection can properly be demanded by every witness who identifies a criminal, for there is a likelihood that every criminal will have associates of a violent bent. If such special duty exists the police cannot refuse to give it. Such a situation should not be brought into existence. The need for special protection must be left to the absolute discretion of the police force. A mere mistake in judgment by the department should not be the basis for the imposition of liability upon the municipality else, as we have noted, to discharge its duty and at the same time to avoid liability, the police department will find itself faced with the impossible task of supplying all witnesses and all informers with special protection until that point of time is reached when it becomes a virtual certainty that no harm will befall the particular witness or informer. To withdraw the protection at any point short of this will, under the rule now being announced by the majority, subject the municipality to possible liability at the hands of a jury. The truth of this becomes evident when it is realized that in the present case the majority is content to let a jury determine whether to return a judgment against the city even though (a) there is no proof available as to who shot and killed Schuster and (b) there is no proof available as to whether the threats made to Schuster were made by his assassin or simply by a crank.

It is further suggested that the city may properly be held liable for having prematurely withdrawn partial protection of Schuster. Support for this holding is said to be found in the rule that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all * * * (Glanzer v. Shepard, 233 N. Y. 236, 239).” We believe that the quoted rule cannot reasonably be said to have application to a situation such as that presented here. Under that rule one who assumes to act, where he is not legally bound to act, is required to act with such care that he not injure, or aggravate an existing injury, assuming that there be one, of the one to whom he offers aid. Assistance given which in no way harms the recipient thereof is not actionable. In affording Schuster partial special protection the police did not bring about his death. Likewise in withdrawing the partial special protection the police did not bring about Schuster’s death. In withdrawing the special protection gratuitously given, the police left Schuster in precisely the same position as he was in before the partial special protection was given. The withdrawal did not aggravate or alter the situation in the slightest. Schuster’s death was caused solely by the act of an unknown assailant. The public at no time owed him special protection against such assailant. They gratuitously gave him partial special protection but it cannot fairly be said that such partial special protection, or the withdrawal thereof, increased the danger of injury to Schuster or in any way contributed to his death.

Nor may the city be cast in damages upon the ground that statements and assurances given by certain members of the police force lulled plaintiff’s intestate into a relaxation of vigilance and a false sense of security. Briefly, the allegations are that the police falsely represented that the intestate was not endangered by reason of threatening and menacing telephone calls, anonymous letters, missives, notes and messages” and that the police falsely represented that the telephone calls, etc., were the work of “crackpots” and “cranks” and were child’s stuff”. It is clear that the statements made by the police were expressions of opinion, not expressions of fact upon which the intestate had a right to rely. They could hardly have been more than expressions of opinion in view of the fact that the identity of those who threatened the intestate was unknown. No fraud action may be grounded on a mere expression of opinion.

In sum, the police force of the City of New York is under a broad duty to protect the general public from every form of crime. However, this duty does not inure to the benefit of individual members of the public.

The judgment should be affirmed, with costs.

Desmond, J. (dissenting).

I vote for affirmance on the grounds stated by the Chief Judge and on an additional ground. The allegations of the complaint and the concessions of counsel make it entirely clear that, six years after the event, plaintiff has no knowledge or information whatever as to the identity or motives of his son’s assailant or assailants. Thus, the suit is based on what must be a mere guess (or choice among mere possibilities—Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7) that Arnold Schuster was killed because he informed on Sutton. It is evident that there is a complete absence not only of knowledge but even of information that the killing was related to Arnold Schuster’s activity as an informer.

Froessel, J. (dissenting).

I concur with Chief Judge Conway and Judge Desmond for affirmance. Without the support of a statute or a single applicable judicial precedent, the majority is about to announce a new rule of law, namely, that every city, town and village of this State may now be held in heavy damages if their police departments fail to give such protection to an informer as a jury may later determine was adequate. And this, notwithstanding the fact that the Legislature of this State, which created these governmental agencies, has already manifested, by its enactment of section 1848 of the Penal Law, how far it has been willing to go in allowing compensation to persons aiding the police.

In the first place, we are here dealing with the legal sufficiency of a complaint, in which plaintiff seeks upwards of half a million dollars in damages from the City of New York. That complaint alleges, among other things, that the Police Department of the City of New York “duly acknowledged and was instrumental im making known” to the press and the general public “its acknowledgment and recognition” of Schuster’s part in supplying information leading to Sutton’s arrest. (Emphasis supplied.) Such “acknowledgment” presupposes that the press and public were already aware of Schuster’s role, and it is not alleged that the Police Department “widely publicized” the fact, as the dissenting Justice below wrote, and violated “its usual practice of concealing the identity of informers”, as now claimed by appellant.

The complaint further sets forth that the Police Department knew that Sutton “was an unusually dangerous character with an unusually dangerous group of associates”, which associates had “a special reputation for violence”, and that Schuster and his family were threatened; that the Police Department initially undertook a limited and partial protection of the place of business and home of Schuster and his family, but failed to continue such protection. Nowhere is it alleged that the police undertook protection elsewhere. The complaint also alleges that Schuster was “allowed to be shot with a lethal weapon”, sustaining injuries resulting in his death, on a public street at night; it is not alleged how near or how far from his home.

Sutton had already been arrested at the .time of the shooting, so I suppose we are to guess that the assailant was an unknowm, undescribed and unidentified associate of his. There is not, however, a single factual allegation in the complaint as to who did the threatening or who did the shooting, and mere conclusory allegations that Schuster’s death was due to defendant’s negligence will not fill this hiatus.

Of course, we must assume the factual allegations of a complaint to be true, but not unpleaded facts. Nor may we assume as true its conclusions of law. “A complaint must state facts. General allegations of wrongdoing based upon undisclosed facts do not state a cause of action” (Gerdes v. Reynolds, 281 N. Y. 180, 183-184; see, also, Kalmanash v. Smith, 291 N. Y. 142, 153-154).

Assuming arguendo that defendant owed Schuster a legal duty of protection and that that duty was breached, the complaint still fails to allege a cause of action in negligence because it is devoid of a factual allegation that the breach of the duty was a cause in fact of Schuster’s death. There is no liability in tort unless the defendant’s wrongful conduct is a cause in fact of plaintiff’s injury or death. Under plaintiff’s theory of recovery, a duty to give his intestate protection arose because the criminal whose apprehension was aided by decedent had “an unusually dangerous group of associates”. Yet, as noted, there is no factual allegation in the complaint that decedent’s death was caused by one of these “associates” or that they threatened him. As Judge Cabdozo pointed out in Martin v. Herzog (228 N. Y. 164, 170),

“We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury.”

(See, also, Cole v. Swagler, 308 N. Y. 325, 331.)

Negligence presupposes the existence of a legal duty, and, as Chief Judge Conway outlines in his opinion, defendant did not fail in any legal duty. We have recently said (Williams v. State of New York, 308 N. Y. 548, 557):

“Without duty, there can he no breach of duty, and without breach of duty there can be no liability.”

Appellant can point to no statute, and his counsel concedes he has been unable to find any precedent, creating a duty, the breach of which is actionable in tort, to provide protection to an informer”.

In Steitz v. City of Beacon (295 N. Y. 51, 55), decided less than six months after Bernardine v. City of New TorTc (294 N. Y. 361), we held that while indeed there was a public duty to maintain a fire department, that was all, and there was no suggestion” that damages could be recovered by an individual against the city for omission to keep its water pipes in repair. In Murrain v. Wilson Line (270 App. Div. 372), the Appellate Division held that a municipality is not liable to an individual for its failure to exercise a governmental function, namely, to provide adequate police protection, and we unanimously affirmed (296 N. Y. 845), less than two years after our decision in the Bernardme case. In Moch Co. v. Rensselaer Water Co. (247 N. Y. 160, 167-169), Judge Cabdozo stated that the failure “to furnish an adequate supply of water is at most the denial of a benefit. It is not the commission of a wrong”, and thereby distinguished that case from the negligence of the surgeon, the engineer and the manufacture. (See, also, Landby v. New York N. H. & H. R. R. Co., 199 Misc. 73, affd. 278 App. Div. 965, motion for leave to appeal denied 303 N. Y. 1014.) Thus it was settled in this State that a municipality is not liable for inadequate police or fire protection.

Matter of Quarles and Butler (158 U. S. 532) is clearly inapplicable here. That case involved the punishment under Federal statute of individuals guilty of an assault upon a person who had informed against them. Nor are the other cases relied on by the majority apt here. All of them dealt with entirely different factual patterns, and in each one of them the negligence consisted of some act of misfeasance, including McCrink v. City of New York (296 N. Y. 99) where the Police Commissioner persistently retained a patrolman who was clearly a known alcoholic and who shot and killed plaintiff’s intestate and wounded another; and Meistinsky v. City of New York (309 N. Y. 998) where the Police Commissioner appointed a policeman who had not received sufficient and proper training in the use of firearms and who subsequently killed another. In both of the latter cases, the police officers were a menace to the public at large, and third persons were killed as a result of negligent acts of commission. None of the cases relied on suggests liability for mere failure to provide police protection under the circumstances here claimed to be present.

Judge Van Voorhis states that Schuster owed the duty of informing the police of the whereabouts of Sutton, and that “it matters little whether this duty be described as legal or moral” (citing People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188, 199-200, where a statute was involved). He then speaks of the “reciprocal governmental duty to take * * * measures to assure protection”. Are we to understand that it matters little whether the reciprocal governmental duty” be described as legal or moral, and that liability may follow in either event?

Section 1848 of the Penal Law is clearly inapplicable. That section sets the limit to which the Legislature has been willing to go in establishing liability against municipal corporations to compensate individuals who aid the police. One can only conclude therefrom that the Legislature, as a matter of public policy, does not wish to extend liability to situations not embraced within the statute, for, as we said in the Steitz case (supra, p. 55),

“An intenten to impose upon the city the crushing burden of such an obligation [liability to individual citizens for inadequate fire protection] should not be imputed to the Legislature in the absence of language clearly designed to have that effect.”

Nevertheless, the majority would now rewrite the statute and extend its operation to informers.

Nor is there any validity to the claim that the voluntary assumption by the Police Department of the partial protection of plaintiff’s intestate at his home and place of business carried with it the legal obligation not to terminate such protee tion. The complaint shows that Schuster was shot on the street, and not at his home or place of business, and it does not allege that the Police Department ever undertook to protect Schuster on the highways or at any other place, outside of his home and office. They did not have him in protective custody. Oases involving affirmative acts of wrongdoing, such as Glanzer v. Shepard (233 N. Y. 236, 239 [certifying to the wrong weight of a shipment]), and Marks v. Nambil Realty Co. (245 N. Y. 256 [landlord making repairs negligently]) have no application here.

As to the third and fourth causes of action, I agree with the Chief Judge and the courts below that the additional allegations as to the representations allegedly made by unnamed policemen were no more than expressions of their opinions, in no way binding on the city.

We are not deciding the question of the city’s moral obligation to Schuster for the valuable information which he gave to the police. It may be here noted that our State Legislature has provided (L. 1937, ch. 929) in the Administrative Code of the City of New York (§ 434a-32.0, subd. [b]) that the Police Commissioner is authorized to offer rewards to informers, and the Board of Estimate shall make the necessary appropriation for such purpose. In section 1848 of the Penal Law the Legislature has made it mandatory in the situation there embraced. It has not legislated further.

The consequences of the decision about to be handed down may not be overlooked. The courts are constantly made cognizant of the not uncommon practice of threats made to informers and prospective witnesses, especially in criminal cases. Police commissioners, in order to guard against possible claims and lawsuits against the municipal corporations they serve, may now be required in all such cases to furnish costly protection by providing at least three police officers to each such person every single day. The police would have to guess at the length of time such protection should be afforded— whether for days, months or even longer — and whether a jury would deem sufficient such protection as was decided upon. The cost to the municipal corporation of such protection would be incalculable.

The foregoing considerations, the absence of any statute or judicial precedent in support of the majority opinion, our own previous decisions with respect to liability for inadequate police and fire protection, the legislative policy thus far declared, and the absence of necessary factual allegations in the complaint all lead me to the inescapable conclusion that no cause of action is stated here.

Judges Dye and Fuld concur with Judge Van Voorhis ; Judge McNally concurring in a separate opinion in which Judges Dye, Fuld and Van Voorhis also concur; Chief Judge Conway and Judges Desmond and Froessel dissent and vote to affirm, each in a separate opinion in which the others concur; Judge Burke taking no part.

Judgment reversed, motion to dismiss complaint denied and matter remitted to Special Term for the entry of the essential order, with costs in all courts. 
      
       Designated pursuant to section 5 of article VI of the State Constitution in place of Judge Burke, disqualified.
     