
    Nan Winter, Appellant, v. The Department of Health of the City of New York, Respondent.
    Second Department,
    May 29, 1912.
    Municipal corporations — action against department of health, city of New York, to recover expenses of trained nurse during illness — practice of furnishing attendance — evidence — statement of supervising nurse.
    A trained nurse, formerly employed in a hospital for contagious diseases,, when suing the department of health of the city of New York to recover for the hire of trained nurses made necessary by a disease contracted in service, pursuant to an alleged promise that she should receive attendance and care should she become ill, should be allowed to ask the supervising nurse who employed her whether, in addition to salary and board, nurses, under the practice of the department, were entitled to care if they became ill while in service.
    If such practice prevailed in the department of health and was made known to the plaintiff when hired, it became part of the consideration of the hiring.
    Such evidence as to the practice of the department is admissible although the supervising nurse, being a mere employee, had no implied power to make such contract on her own initiative.
    Appeal by the■ plaintiff, Wan' Winter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of Wovember, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Kings County Trial Term.
    
      Ralph G. Barclay [Robert Stewart with him on the brief], for the appellant.
    
      James D. Bell [Sanders Shanks and Archibald R. Watson with him on the brief], for the respondent.
   Carr, J.:

On the trial of this case the plaintiff’s complaint was dismissed at the close of her evidence, and from the judgment of dismissal the plaintiff now appeals.

It appears from the proofs taken at the trial that the plaintiff was engaged by the defendant as a trained nurse in a hospital which it maintained for contagious, diseases in the borough of Brooklyn. She applied for employment at the hospital in question, and there met a Miss Murphy, who was then in charge of said hospital as “ Supervisor of nurses.” A conversation took place between her and Miss Murphy, in which the latter stated the rate of compensation payable to trained nurses employed in the said hospital as forty dollars a month with board, with an increase to forty-five dollars per month, and at the end of a year and a half’s service fifty dollars .a month. The plaintiff demurred to these rates, on the ground that they were too small for the risk that was taken by the nurses in a contagious disease hospital, and the supervising nurse answered, “Remember though, we take care of you if you contract disease, and the salary will continue till you are able to work again.”

The plaintiff'thereupon entered upon employment as a trained nurse in the hospital in question, and her name was placed upon the payroll of the defendant. While she was engaged in such service, she injured one of her fingers; the injury progressed and her hand and arm became infected with sepsis. The defendant furnished a surgeon who amputated the injured finger. The trouble still continued, and the plaintiff became dangerously ill and was removed from the Contagious Diseases Hospital to the Kings County Hospital, which is an institution maintained by another department of the government of the city of Hew York, namely, the department of charities. While in the latter institution, the illness of the plaintiff became so severe that her life was imperiled, and at the suggestion of the physician in charge, the plaintiff, through her mother, hired trained nurses for night and day attendance upon her. After she became sufficiently well to be removed from this hospital, a period of convalescence set in. During the time she was in the hospital, as well as for a number of months while she was convalescing, her name continued upon the payroll of the defendant, and she received the monthly compensation agreed upon. She finally abandoned her position as nurse, and did not return to service under the defendant.

She brought this action for a breach of contract to recover the expenses of hiring the day and night trained nurses while she was in the Kings County Hospital, and further expenses attendant upon her period of convalescence. It further appeared from the proofs that the hiring of these outside nurses to care for the plaintiff while she was in the Kings County Hospital was a matter of necessity, as that institution was unable to provide her with the attendance that was absolutely requisite, considering her gravely serious condition.

The learned trial court was of opinion that the supervising nurse, Miss Murphy, had no povrer to make the contract upon which the plaintiff claims to recover for an alleged breach thereof. He held, further, that it was incumbent upon the plaintiff to show affirmatively the existence of such a power in the supervising nurse.

Miss Murphy was called as a witness-by the plaintiff, and she did not contradict the story of the hiring as told by the .plaintiff herself. She testified, however, that there was a schedule of salaries for nurses at the hospital in question, and that the furnishing of board and lodging to the nurses was included in the compensation to be paid. • She was asked by the plaintiff’s counsel if there was anything further in regard to any of the nurses who might be taken ill while in the performance of their duties in the hospital. This question was objected to by the defendant, the objection sustained and an exception taken.

On this appeal the respondent contends that this action is controlled by the authority of McDonald v. Mayor (68 N. Y. 23). In that case the plaintiff sought to recover for supplies furnished to the city of New York for the repair of a highway. The charter of that city, however, contained a provision which restricted and regulated the method of making contracts for such purpose, and the contract under which the plaintiff claimed was unquestionably in violation of the charter regulations and restrictions. While the learned court discussed the . various principles of law which applied to the liability of municipal corporations on contracts made by its officers, it expressly declared as follows: “This opinion goes no further than to hold, that where a person makes a contract with the city of New York for supplies to it, without the requirements of the charter being observed, he may not recover the value thereof upon an implied liability.”

This was then the law, and is yet "the law, but the learned counsel for the appellant does not call to the attention of this court any provision of the charter of the city of New York which in any way regulates the manner, or restricts the power of hiring trained nurses for the service of the city in its hospitals. The defendant is a quasi municipal corporation, created by the charter of the city of New York, wherein it is provided that it may sue and be sued, in its own name. It is given power to maintain hospitals of this character, and to delegate to certain officers, known, as sanitary superintendents, the exercise of powers requisite to carry out the general power. (See Laws of 1901, chap. 466, §§ 1170, 1179, 1182, 1192, as amd.)

The proofs offered by the plaintiff would tend to establish that she had been hired lawfully as a trained nurse in the hospital in question, and she should have been allowed to prove, if she could, that the rate of compensation for such service included an agreement on the part of the defendant to take proper care of her if she became ill while in the defendant’s service.

It was error, therefore, to exclude the question addressed to the supervising nurse in regard to any existing rule or practice of the department in this respect when the plaintiff was hired. The plaintiff had testified that the supervising nurse had made a definite statement on this point, and if such was the rule and practice of the defendant in engaging its nurses it would have been competent and relevant for the supervising nurse to so testify. If there was such a rule and practice of the department, and such was made known to the plaintiff, then it should form a part of the consideration of the contract of hiring. Of course the “supervising nurse,” who was herself but an employee, had no implied power to make, on her .own initiative, a contract importing such terms. We think there should be a new trial.

The judgment should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.

■ Judgment reversed and new trial granted, costs to abide the event.  