
    JENNIE THOMPSON, as Administratrix, &c., Appellant, v. THE MAYOR, &c. of N. Y., Respondents.
    
      Fire department—liability of city for acts employees of.
    
    The corporation of New York city, under the laws applicable thereto, not being the superior of the employees of the fire department in said city, is not liable for their negligent acts or omissions.
    This is so, though the alleged negligent act on which the action is founded occurred white the employees of said department were engaged in testing certain apparatus,—e. g., a fire tower,—prior to its purchase by the city for use in said department.
    Before Sedgwick, Oh. J., and Van Vorst, J.
    
      Decided December 7, 1885.
    Appeal by plaintiff from dismissal of the complaint a trial term, on the opening of the case.
    The facts are stated in the opinion.
    
      C. S. Spencer, and C. B. Waterbury, for appellant.
    I. The act alleged in the complaint was of a private character, performed for the benefit of the city, and it is therefore liable. The apparatus was to become the property of the city. The laws of 1865, chapter 249, provide that all fire apparatus, &c. shall remain the property of the mayor, &c. of the city of New York (Consolidation Act, § 424). The commissioners were performing an action reasonably necessary in the buying or acquiring property for the defendants, and in all matters in which they are interested, and in reference to the ownership of property the defendants must be treated as a private person or corporation (Potter Corp. § 455 ; Dillon Mun. Corp. 991; Bailey v. Mayor, 3 Hill, 531; Lloyd v. Mayor, 3 N. Y. 374).
    
      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, of counsel, for respondents.
    The purchase of apparatus is as clearly within the powers conferred by the statute as is the extinguishment of fires ; and, therefore, the duty which the commissioners were performing, in endeavoring to ascertain the fitness of the apparatus they proposed to purchase, is as clearly within the principles which relieve the city from liability, as is the duty performed when fires are extinguished (Edgerly v. Concord, 59 N. H. ; S. C., 29 Alb. L. J. 291).
    Even if the commissioners were engaged in the performance of an act beyond the scope of the duties prescribed by them by the statutes, and their employees were engaged therein, at the time of the occurrence of this incident, still the city would not be liable. It is clear that in such cases the commissioners, or the parties under their direction, would be acting outside the scope of public duty, and therefore upon their individual responsibility, and that liability for carelessness or negligence would extend no farther than to the person who was careless or negligent (Smith v. City of Rochester, 76 N. Y. 506).
   By the Court. —Van Vorst, J.

The fire commissioners, who administer the fire department, within the city of New York, were engaging in testing, with reference to' a purchase thereof, by the defendant, some fire apparatus, called a “ tower,” in a public place known as the “ Battery.”

The plaintiff’s husband, who was standing by, was killed by the fall of the tower.

The plaintiff, as administatrix of her late husband’s estate, brings this action to recover damages for her husband’s death, occasioned, as she claims, through the negligence of the defendant.

Upon the opening of the plaintiff’s case, the learned judge who presided at the trial dismissed her complaint, and from the judgment upon such dismissal this appeal is taken.

That the defendants are not liable in damages for the negligence of the commissioners of the fire department, or their servants, has been repeatedly decided. Under the system of laws applicable to the city of New York, it is well settled that the defendants are not the superiors of the employees of the fire department, and are not liable for their negligent acts or omissions (Maxmillian v. Mayor, &c., 62 N. Y. 160 ; Ham v. City of New York, 70 N. Y. 459 ; Hill v. City of Boston, 122 Mass. 344; 17 Alb. L. J. 218). In Woodbridge v. Mayor, &c. (49 How. Pr. 67), the subject was considered, and the result above expressed was reached. Cases on the subject are there cited.

The learned counsel for the plaintiff argued, however, that the fire tower was being tested only by the fire commissioners, preparatory to a purchase thereof by the defendants. But the trial judge said upon that subject: “I do not see how a distinction can be drawn between the use of a fire tower, after the title has been vested in the city, and the test of a water tower in view of its acquisition.” We concur in that, statement.

It is the duty of the fire commissioners to provide themselves with proper apparatus for extinguishing fires, which would involve the obligation to test the tower in advance.

A similar point was considered in Edgerly v. Concord (59 N. H.; S. C., 29 Alb. L. J. 291); Smith v. City of Rochester (76 N. Y. 506).

The judgment is affirmed, with costs.

Sedgwick, Oh. J., concurred.  