
    Rose M. Commisso, Respondent, v. Allen E. Meeker et al., Appellants.
    Argued March 28, 1960;
    decided June 9, 1960.
    
      
      Robert R. Cafarell and Martin F. Kendrick for County of Oneida and Joseph Zambon, appellants.
    I. The judgment, insofar as it directs recovery against the County of Oneida, contravenes section 5 of article IX of the Constitution of the State of New York for the county “ shall never he made responsible for the acts of the sheriff.” (Matter of Doey v. Howland Co., 224 N. Y. 30; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Marony v. Applegate, 266 App. Div. 412; City of Oswego v. Montcalm Dock Co., 245 App. Div. 555; Chamberlin v. City of Yonkers, 253 App. Div. 917; Williams v. Hartshorn, 296 N. Y. 49; Young v. International Paper Co., 282 App. Div. 750; Isereau v. Stone, 3 A D 2d 243; Hawkins v. Dominy, 18 Misc 2d 221: Thomas v. County of Ontario, 187 Misc. 711; Lacock v. City of Schenectady, 224 App. Div, 512, 251 N. Y. 575.) II. As a matter of law, no act of the Deputy Sheriff was the proximate cause of the Mastrangelo-Meelcer collision and plaintiff’s resulting injury, and the trial court erred in submitting the issue of the negligence of these appellants to the jury. III. The presence of the Sheriff’s vehicle at the place where it was standing “ did nothing more than to furnish a condition or give rise to the occasion by which the injury was made possible and which was brought about by the intervention of a new, independent and efficient cause.'’ (Gralton v. Oliver, 277 App. Div. 449, 302 N. Y. 864; Bracy v. Lund, 197 Wash. 188; Geisen v. Luce, 185 Minn. 479; Mullane v. Steiner, 275 App. Div. 744; Kralik v. LeClair, 315 Mass. 323; Goldblatt v. Tabacco, 299 N. Y. 663; Slusarz v. Marshall, 282 N. Y. 694; Falk v. Finkelman, 268 Mass. 524; Keyser v. State of New York, 305 N. Y. 661; Nezbeda v. Port of New York Auth., 292 N. Y. 548; Ellsworth v. Couture, 308 N. Y. 969.) IV. The emergency red light demanded caution and was no invitation to drive in the middle of the street. V. The negligence of the colliding drivers was the proximate cause of plaintiff’s injuries. (Hicks v. State of New York, 4 N Y 2d 1; Mullane v. Steiner, 275 App. Div. 744; Ellsworth v. Couture, 308 N. Y. 969; Slusarz v. Marshall, 282 N. Y. 694.) VI. No act of the Deputy Sheriff was “ an efficient cause, without the operation of which the accident would not have happened.” (Leeds v. New York Tel. Co., 178 N. Y. 118.) VII. The Deputy Sheriff was not required to foresee that the stopping of his well-lighted vehicle with its revolving, flashing, red light in operation, on a clear night on a straightaway section of a well-lighted city street would be a source of danger to travelers upon the street. (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339.) VIII. Even if the Sheriff’s patrol car was obstructing the street or traffic thereon, in the slightest degree, adequate warning of the presence of the patrol car, the men around it, and an emergent situation was given. (Axelrod v. Krupinski, 302 N. Y. 367; Killen v. New York Cent. R. R. Co., 225 App. Div. 8; Scott v. Delaware, L. & W. R. R. Co,, 222 App. Div. 409; Pascal v. New York Cent. R. R, Co., 254 App. Div. 807.) IX. The judgment appealed from imposes liability upon a governmental unit simply because its well-lighted patrol car with a large, revolving, flashing, red light in operation happened to be present where it was being used in the performance of essential police work in the vicinity where a head-on collision occurred between irresponsible motorists, both of whom observed but ignored the warning given by the flashing red light. It imposes an impossible burden upon the performance of essential police work, is contrary to law and should be reversed. (Wrubel v. State of New York, 11 Misc 2d 878; United States v. Hutchins, 268 F. 2d 69.) X. The court below erred in excluding from the record and keeping from the jury portions of the Utica State Hospital record and in particular plaintiff’s statement made to a doctor on the staff of the hospital that her “ depression and nervousness started when my lawyer forbid me to go out and told me to stay in the house for one year, all the time, and not have regular outdoor exercise.” (Williams v. Alexander, 309 N. Y. 283; People v. Samuels, 302 N. Y. 163; People v. Strait, 148 N. Y. 566.) XI. The court erred in refusing to permit appellants’ attorney to cross-examine plaintiff’s brother regarding the arrest, of plaintiff upon the complaint of her mother. (Baird v. Daly, 68 N. Y. 547; Jacobson v. Silberstein, 192 App. Div. 42; Levant American Commercial Co. v. Wells & Co., 186 App. Div. 497.) XII. No proper foundation was laid for the admission of Exhibits 8 and 8A in evidence. Their admission was erroneous and prejudicial to these appellants. XIII. The court below erred in refusing to instruct the jury upon pertinent provisions of the Traffic Ordinance of the City of Utica which pertained to the parking or standing of vehicles on the city streets as requested by these appellants.
    
      Kenneth W. Puller for Allen E. Meeker, appellant.
    I. Plaintiff has failed as a matter of law to make out a case of negligence as against defendant Allen E. Meeker. II. The court made reversible error in failing to admit in evidence the copy of the Utica police report. III. The trial court committed prejudicial error in refusing to admit certain portions of Exhibit 29 which is the State hospital record. IV. The trial court erred in excluding evidence of the arrest of plaintiff prior to the accident as a wayward minor. V. The charge of the trial court was prejudicial to defendant in the manner in which it went into detail regarding plaintiff’s injuries.
    
      Richard J. Darsey and John P. Gualtieri for Fradino S. Mastrangelo, appellant.
    I. Plaintiff failed to make out a case of negligence as against defendant Fradino S. Mastrangelo. (Smith v. Levison, 222 App. Div. 310.) II. There was reversible error in failing to admit Exhibit 19 in evidence. III. There was error in excluding testimony regarding defendant Mastrangelo’s medical condition at the time of trial. IV. Defendants were prejudiced by the emphasis on plaintiff’s medical case in the charge.
    
      Ferdinand D. Tomaino and Harold H. Hymes for respondent.
    I. The judgment recovered against the County of Oneida should not be set aside because of section 5 of article IX of the Constitution of the State of New York, which was raised for the first time by appellant county in its brief to the Appellate Division. An appellate court will not pass upon issues which were not raised in the court below and which are mentioned for the first time upon appeal. (Flagg v. Nichols, 307 N. Y. 96; Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Muck v. Hitchcock, 212 N. Y. 283; McCann v. City of Albany, 158 N. Y. 634; Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45; Eddy, Inc., v. Fidelity & Deposit Co., 265 N. Y. 276; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Matter of Yeannelis v. Menides, 259 N. Y. 513; Nod-Away Co. v. Carroll, 240 N. Y. 252; Paul v. Delaware, L. & W. R. R. Co., 175 N. Y. 478; Dodge v. Cornelius, 168 N. Y. 242; Corcoran v. New York Cent. & H. R. R. Co., 164 N. Y. 587; Purdy v. Erie R. R. Co., 162 N. Y. 42; Matter of Cooper, 93 N. Y. 507; Matter of Kipp, 70 App. Div. 567.) II. By appearing generally in this case, appellant county has waived the " constitutional immunity” it is now seeking. (39th-40th Corp. v. Port of New York Auth., 188 Misc. 657; De Simone v. Transportes Marítimos Do Estado, 200 App. Div. 82.) III. Under section 50-b of the General Municipal Law or section 59 of the Vehicle and Traffic Law or both, appellant county is liable for the injuries and damages sustained by plaintiff herein. (Bernardine v. City of New York, 294 N. Y. 361; Matter of Evans v. Berry, 262 N. Y. 61; Augustine v. Town of Brant, 249 N. Y. 198; Van Tassell v. Hill, 285 App. Div. 584; Miller v. City of New York, 266 App. Div. 565, 292 N. Y. 571; Kelly v. City of Niagara Falls, 131 Misc. 934.) IV. Appellant county is bound by the judgment in favor of respondent herein, because this judgment conforms with the "law of the case” and the ‘ ‘ theory ’ ’ upon which it was tried. (Brown v. Du Frey, 
      1 N Y 2d 190; Owen v. Rochester-Penfield Bus Co., 304 N. Y. 457; Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143; Berner v. Board of Educ., 286 N. Y. 174; Buckin v. Long Is. R. R. Co., 286 N. Y. 146; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Gaines v. City of New York, 215 N. Y. 533; Reilley v. City of New York, 273 App. Div. 1014, 298 N. Y. 710; Walldorf v. Central Greyhound Lines, 256 App. Div. 854, 280 N. Y. 725; Sanderson v. Epstein, 262 App. Div. 1028; Ringwood v. George & Son, 261 App. Div. 869.) V. Any claim for immunity which appellant county now seeks for itself as a governmental agency has been waived by the Court of Claims Act. (Holmes v. County of Erie, 266 App. Div. 220, 291 N. Y. 798; Miller v. City of New York, 266 App, Div. 565, 292 N. Y. 571; Lacock v. City of Schenectady, 224 App. Div. 512, 251 N. Y. 575.) YI. The ease at bar is not within the purview of the immunity provision of section 5 of article IX of the State Constitution. (Sawyer v. Town of Southport, 6 A D 2d 553; Oswego & Syracuse R. R. Co. v. State of New York, 226 N. Y. 351; Kelly v. City of Niagara Falls, 131 Misc. 934.) YII. This question of constitutional immunity is evidentiary and not jurisdictional, (Sawyer v. Town of Southport, 6 A D 2d 553; Matter of Evans v. Berry, 262 N. Y. 61; Augustine v. Town of Brant, 249 N. Y. 198; City of Oswego v. Montcalm Dock Co., 245 App, Div. 555.) VIII. The trial court properly exercised discretion in deleting certain portions of the Utica State Hospital record which went to the jury as Exhibit 29. (Williams v. Alexander, 309 N. Y. 283; Roberto v. Nielson, 262 App. Div. 1035, 288 N. Y. 581; Wolf v. Kaufmann, 227 App. Div. 281, 254 N. Y. 598; Vanderhule v. Berinstein, 285 App. Div. 290; Constantinides v. Manhattan Tr. Co., 264 App. Div. 147; Matter of O’Grady, 254 App. Div. 691; Geroeami v. Fancy Fruit & Produce Corp., 249 App. Div. 221; Roden v. State of New York, 208 Misc. 1076.) IX. The trial court properly refused to permit counsel for appellants county and Zambón to cross-examine plaintiff’s brother regarding an alleged arrest of plaintiff. (Gandolfo v. Appleton, 40 N. Y. 533; Manufacturers & Traders’ Bank of Buffalo v. Koch, 105 N. Y. 630; Carpenter v. Ward, 30 N. Y. 243; People v. Brooks, 131 N. Y. 321; Schultz v. Third Ave. R. R. Co., 89 N. Y. 242.) X. Since no police records were produced or properly offered into evidence, and none is part of this record, the question concerning any ruling of the trial court in regard to the police records is not properly before this appellate court. (People v. Sutherland, 154 N. Y. 345; People v. Parker, 137 N. Y. 535; Hathaway v. Addison, 48 Me. 440.) XI. Whether the manner in which the automobile of defendant county was parked on the highway was negligent and a proximate cause of the injuries and damages sustained by plaintiff were questions of fact properly submitted by the trial court to the jury for their determination, and should not be reviewed by the Court of Appeals. Whether or not a vehicle parked partly on the paved portion and partly on the shoulder of a public highway constitutes an obstruction and an unreasonable interference with the lawful use of the highway is a question of fact for a jury. (Luce v. Hartman, 6 N Y 2d 786; De Wald v. Seidenberg, 297 N. Y. 335; Cowley v. Fabien, 204 N. Y. 566; McCaffrey v. Baltimore & Ohio R. R. Co., 201 N. Y. 115; Mullen v. Fayette, 274 App. Div. 527, 300 N. Y. 501; Golja v. Davis, 257 App. Div. 1055, 282 N. Y. 735; Peck v. Independent Auto. Forwarding Corp., 256 App. Div. 859, 280 N. Y. 728; Olsen v. Jacklowitz, 256 App. Div. 1107, 280 N. Y. 853; Sargent v. Wass, 279 N. Y. 747; Diener v. Carmen Cab Corp., 264 N. Y. 407; Overbaugh v. Emory Transp. Co., 1 A D 2d 729; Rosen v. Leibowitz Pickle Works, 257 App. Div. 855; Hornshuh v. Alldredge, 149 Ore. 419.) XII. With the very wide shoulder available to him for parking, defendant Zambón was negligent in failing to park the county car completely off the paved portion and farther over on the shoulder. (Bacon v. Rochester Tr. Corp., 1 A D 2d 759; Keller v. Brennaman, 153 Wash. 208; Merback v. Blanchard, 56 Wyo. 152; Peckinpaugh v. Engelke, 215 Iowa 1248.) XIII. Having found defendants county and Zambón negligent, it was for the jury to determine whether such negligence was a proximate cause of the accident herein. (Sweet v. Perkins, 196 N. Y. 482 ; Ring v. City of Cohoes, 77 N. Y. 83; Leeds v. New York Tel. Co., 178 N. Y. 118; Hancock v. Steber, 208 App. Div. 455; Gibson v. State of New York, 173 Misc. 893, 259 App. Div. 1104; Overbaugh v. Emory Transp. Co., 1 A D 2d 729.) XIV. The evidence of plaintiff was substantial and sufficient for the jury to find negligence on the part of all defendants and that such negligence was the proximate cause of the accident. (McDonald v. Metropolitan St. Ry. Co„ 167 N. Y. 66; Hart v. Ruduk, 233 App. Div. 453; De Wald v. Seidenberg, 297 N. Y. 335; Cowley v. Fabien, 204 N. Y. 566; McCaffrey v. Baltimore & Ohio R. R. Co., 201 N. Y. 115.) XV. The evidence of plaintiff was sufficient to sustain the verdict of the jury in her favor against appellants county and Zambón. (Sweet v. Perkins, 196 1ST. Y. 482.)
   Froessel, J.

On December 22, 1957, at about 2:15 a.m., plaintiff, a 22-year-old unmarried young woman, was severely injured when an automobile operated by defendant Mastrangelo, in Which she was riding as a passenger, collided with an automobile operated by defendant Meeker, on Oriskany Street in the City of Utica. Parked partly on the south shoulder of Oriskany Street—its exact position is in dispute — at the time of the accident was the patrol car of the Deputy Sheriff of Oneida County, defendant Zambón, who shortly before had apprehended a speeding motorist. Following a conversation with the latter, Zambón returned to his patrol car to prepare a summons, whereupon the three passengers who had alighted from the vehicle of the apprehended motorist came alongside the patrol car to talk with Zambón. While thus engaged in conversation, the cars of Meeker and Mastrangelo approached from opposite directions.

Mastrangelo testified that, after he passed under the ‘ Halfway Bridge ” into Utica on Oriskany Street, he noticed a “ red flasher light ” ahead of him on the southerly side of the road. As he drew closer he noticed that the light came from a county car, which he stated was parked with the left rear portion on the road. He also noticed men standing alongside. Meeker, coming from the opposite direction, also noticed the flashing red light on the county car, and men standing alongside on the paved portion of the road. As Mastrangelo approached the county car and the men alongside it, he turned his car to the left. At about the same time, Meeker was allegedly attempting to pass another automobile proceeding westerly ahead of him. He saw a flash of lights come towards him (Mastrangelo’s ear) and both cars met in the center of the road head on. As a result of the impact, Mastrangelo’s automobile was pushed back and swung around, striking the left rear door of the patrol car.

Oriskany Street, where the accident occurred, is 78 feet wide. Its paved portion, consisting of three 10-foot lanes, is flanked on the north and south by wide shoulders of about 24 feet each. At the place of the accident the shoulder to the south was 26 feet wide.

It is contended on this appeal by the defendants Meeker, Mastrangelo and Zambón that none of them was negligent nor did any of them proximately cause plaintiff’s injuries. All of the members of this court agree that there is ample evidence in this record to sustain the jury’s contrary finding as to defendants Meeker and Mastrangelo. A majority of us similarly agree as to defendant Zambón.

The testimony of Mastrangelo that Zambón’s ear was parked partially on the paved portion of the street was supported by one Siemski who testified to similar effect. Siemski was traveling behind Mastrangelo’s car prior to the collision. Other witnesses stated at the trial that Zambón’s car was about 2 feet off the paved portion of the road. It is undisputed, however, that the 26-foot-wide shoulder on the south side, at the place where Zambón’is car stood, was level for a distance of up to 15 feet south of the paved roadway; and that the shoulder was wet but firm. It is also undisputed that traffic at about the time of the accident was exceptionally heavy—according to Zambón’s own testimony.

Certainly the jury had a right to find on the basis of the foregoing evidence that the Deputy Sheriff did not act reasonably under the circumstances, and that he negligently obstructed the highway. Taking the view of the evidence most favorable to plaintiff, as we must do in light of the verdict in her favor, it may be said that Zambón chose to obstruct the travelled part of the roadway on a night when traffic was exceptionally heavy, and failed to make full use of the 15-foot expanse of firm shoulder which was available to him. The, jury also had a right to find on the facts when thus viewed that Zambón’s negligence was a proximate cause of the accident and plaintiff’s resulting injuries — together, of course, with the negligent acts of Mastrangelo and Meeker (Peck v. Independent Auto Forwarding Corp., 280 N. Y. 728; Sargent v. Wass, 279 N. Y. 747; Lugert v. Cohen, 303 N. Y. 642; Overhaugh v. Emory Transp. Co., 1 A D 2d 729; see, also, Axelrod v. Krupinski, 302 N. Y. 367; Bacon v. Rochester Tr. Corp., 1 A D 2d 759; Rosen v. Leibowitz Pickle Works, 257 App. Div. 855, motion for leave to appeal denied 281 N. Y. 889).

The cases cited by Zambón in alleged support of his position are readily distinguishable. Most deal with instances where an automobile parked on the side of a highway had ceased to operate because of mechanical difficulties, and hence could not be moved onto a shoulder; or an available shoulder on which to pull over was lacking. Others are distinguishable in' that there was lacking a ‘ ' clear sequence ’ ’ or continuous stream of events culminating in injuries to plaintiff; or that" it clearly ‘ ‘ could [not] have been reasonably anticipated ’ ’ under the circumstances, as here, ‘ ' that the consequences complained of would result from the alleged wrongful act ” (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425, 430).

As to the responsibility of the County of Oneida, it is true that ordinarily a governmental subdivision of the State would be liable upon the finding that its employee negligently caused injury to another in the course of performing his official duties (see County Law, § 53, subd. 1). The County of Oneida contends, however, that holding it vicariously liable in this case for the negligent acts of its Deputy Sheriff, as did the courts below, violates section 5 of article IX of the New York State Constitution, which provides in relevant part that “ Sheriffs * * * may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff. ” (Emphasis supplied.)

This immunity provision was first added to our Constitution in 1821 as part of section 8 of article IV (see text in Lincoln, Constitutional History of New York, Vol. 1, pp. 205-206). The principal purpose of section 8 of article IV, apparent from its language and the debates at the 1821 constitutional convention, was to make the office of Sheriff an elective one (see Proceeding's and Debates, Constitutional Convention, 1821, at pp. 384-392 [Oct. 9, 1821]). Theretofore the office was an appointive one (N. Y. Const, of 1777, art. XXVI, at Lincoln, op. cit., supra, Vol. 1, p. 179).

The delegates to the 1821 constitutional convention vigorously debated the merits of electing Sheriffs to office. Immediately after the resolution proposing the change was carried, “ Mr. Munro offered an amendment as follows: ‘ But the county shall never be made surety for the sheriff, nor responsible for his acts.’ ” This proposed amendment was not debated by the convention. The minutes bear the simple notation that the amendment was “Carried”. Thus the immunity clause — in effect a rider to the provision for electing Sheriffs — became a part of our State Constitution.

At subsequent constitutional conventions, resolutions were offered to repeal the immunity provision, but they were never carried, with the result that this provision has endured to the present day as part of our Constitution. At the convention of 1867, Mr. Cooke proposed to repeal this provision, contending that the immunity provision ‘ is unnecessary, and deals • with matters that ought to be the subject of legislative action rather than of constitutional provision”. Debate followed, and the proposed amendment was defeated (Convention Proceedings and Debates, 1867-1868, Yol. II, pp. 924^926; see, also, id., Vol. V, p. 3653).

At the 1938 constitutional convention, a proposed amendment (Int. No. 470) introduced by Mr. Platt was referred to the Committee on Counties and Towns (Revised Record, N. Y. State Const. Convention, 1938, Vol. I, p. 237). The committee reported favorably (id., Vol. II, pp. 1016-1017), and when the amendment was reached on the General Order Calendar the following occurred:

1 ‘ Mr. Platt: I should like to move to recommit General Order No. 69, Int. No. 470, Pr. No. 799 to the Committee on Counties and Towns. That was a bill that was introduced at the instance of some of the sheriffs of the State, which would place the burden of responsibility on the county rather than the sheriffs. They feel now that it should not be done, and I therefore move to recommit.
‘ ‘ The President: Of course, you understand an order to recommit means to take it off of the calendar for good? Those in favor of the motion signify by saying Aye; contrary minded, No. The motion is carried. That disposes of it.” (Id., Yol. Ill, p. 2541.)

Another amendment eliminating the provision as to nonliability of counties for actions of Sheriffs was also proposed (Pr. No. 601, Int. No. 573; N. Y. State Const. Convention, 1938, Proposed Arndts., Yol. II). This too was not carried (see Revised Record, N. Y. State Const. Convention, 1938, Yol. I, p. 254; id., Yol. II, p. 745).

The immunity clause of section 5 of article IX has been construed by the courts on a number of occasions. The earliest reported case is that of Wolfe v. Supervisors of Richmond County (19 How. Prac. 370 [Sup. Cl, I860]). There involved was an action under the statute (L. 1855, ch. 428)—alluded to at the 1867 convention — providing that a city or county shall be liable in damages to a party whose property is destroyed by a mob or riot. The question presented was whether that statute violated the immunity provision of section 5 of article IX (then art. X, § 1). It was held that it did not. Justice Ingraham construed the immunity provision as follows (19 How. Prac. 373): “ The true construction of this clause is, that for anything done by the sheriff in the discharge of his official duties, the county shall not be liable. If it had been averred that the sheriff, while attempting to preserve the peace, illegally took possession of and destroyed the plaintiff’s property, this provision would apply and would protect the county from liability.’’ (Emphasis supplied.) He then reasoned that “ The statute of 1855 does not place the responsibility either on the act of the sheriff, nor as the defendant supposes, on the neglect of the sheriff to act. The only ground of liability is the existence of a mob or riot in the county, and the destruction of property by such mob.” {Id.)

The Wolfe case was followed in Moody v. Board of Supervisors of Niagara County (46 Barb. 659, affd. sub nom. Ely v. Supervisors of Niagara County, 36 N. Y. 297), where it was similarly contended that the statute of 1855 violated the immunity clause of the Constitution (see 46 Barb., at p. 662). Subsequent to these early cases, the lower courts have quite consistently applied the mandate of section 5 of article IX and have held the county immune from liability for the negligent acts of the Sheriff and his deputies, committed in the course of their official duties (Thomas v. Ontario County, 187 Misc. 711 [1946]; Mentillo v. County of Cayuga, 2 Misc 2d 820, 821 [1956]; Schnitzer v. County of Erie, 8 Misc 2d 989 [1957]; Isereau v. Stone, 3 A D 2d 243, 247 [1957]; see, also, Hawkins v. Dominy, 18 Misc 2d 221, 222).

It thus appears that the compelling mandate of the constitutional provision is crystal clear, stating in the plainest language that " the county shall never be made responsible for the acts of the sheriff.” (Emphasis supplied.) That provision has endured to the present day despite attempts at repeal in both the 1867 and 1938 constitutional conventions. The convention delegates in 1938 knew that in 1929 the Legislature had enacted former section 12-a of the Court of Claims Act; nevertheless it retained the constitutional provision, preserving the immunity of the county for the acts of the Sheriff. It was also known that the duties of the Sheriff have from ancient days embraced the same duties as those of police officers (see Proposed Code C’rim. Pro. [1850], § 154; County Law, § 650), in which capacity defendant Zambón acted when he proximately caused plaintiff’s injuries. It is therefore my opinion that defendant County of Oneida is immune from liability in this case for the negligent acts of its Deputy Sheriff.

Plaintiff argues on this appeal, in reliance on the case of Sawyer v. Town of Southport (6 A D 2d 553), that the meaning of the immunity provision is ambiguous and doubtful, and hence such legislative enactments as subdivision 1 of section 53 of the County Law override the constitutional mandate. Neither the Legislature nor the courts, because of equitable considerations or otherwise, have the right to override the constitutional mandate of section 5 of article IX. It cannot reasonably be said that because the immunity provision is found in a section which made the office of Sheriff an elective one, or because the provision became a part of the Constitution without the benefit of exposition or debate, its plain meaning is rendered obscure. Even if it were a necessary prerequisite, the debate lacking in 1821 was supplied in 1867; and section 8 of article IV (N. Y. Const., 1821; now art. IX, § 5), the section dealing with Sheriffs, was the only natural place to put the immunity provision. Moreover, the fact pattern in Sawyer is quite different. There a person had been lawfully commanded to aid ” the Sheriff, and the latter’s act was strictly in accord with law. The statute in that case created a liability without fault.

Several members of the court have taken the position that the immunity provision is inapplicable to the instant case, and hence the County of Oneida is liable for the negligent acts of Deputy Sheriff Zambón, committed in the course of his official duties. It is reasoned by them that the “ ancient” immunity ‘ ' provision protects comities from the consequences of wrongful performance by Sheriffs of the historic, conventional duties of the centuries-old office of Sheriff ”. Such interpretation of the constitutional provision is entirely correct, but it does not follow therefrom that the county is rendered liable in the instant case.

It is a matter of historical fact (see Problems Relating to Home Rule and Local Grovernment [N. Y. State Const. Convention Committee, 1938, Vol. XI], pp. 124-130), which has been recognized judicially (Coyles v. Hurtin, 10 Johns. 85, 87 [1813], opinion per Keut, Ch. J.; Pearce v. Stephens, 18 App. Div. 101, 104-105, affd. 153 N. Y. 673), and statutorily (see Proposed Code Crim. Pro. [1850], § 154; County Law, § 650), that the ‘ ' historic, conventional duties of the centuries-old office of Sheriff” have from time immemorial included police duties. As the court stated in the Pearce case (supra, pp, 104-106): “ It is the duty of a sheriff to act as a conservator of the peace within his county * * *. His duties are, in a large measure, in kind the same as are imposed upon police officers and he necessarily exercises police powers * * * duties devolved upon him by the common law ”. Defendant Zambón in this case was engaged in the performance of the present-day counterpart of the Sheriff’s traditional police duties when he negligently caused plaintiff’s injuries, and hence the county may not be held responsible.

In the Chief Judge’s opinion it is asserted that the immunity provision should be construed in the light of the provision dealing with the Sheriff’s official bond found in an earlier sentence of section 5 of article IX. It is reasoned therefrom that since the ‘ ‘ negligent handling of a county-owned automobile ” by a Deputy Sheriff does not constitute misfeasance or malfeasance ” of the sort for which recovery may be had under his official bond, such negligent acts are excluded from the ambit of the immunity provision.

In the first place, when the convention in 1821 added the immunity clause to section 8 of article IV (now art. IX, § 5) after the provision relating to the Sheriff’s security, it could only have meant by the word ‘ ‘ But ’ ’ that the county was immune regardless of that security. Secondly, I cannot agree with the basic assumption that the ‘ ' negligent handling of a county-owned automobile ” does not constitute misfeasance redressable against the surety. That issue does not appear to have been previously determined in this jurisdiction. However, the prevailing weight of authority in other jurisdictions which have passed upon the question holds that the surety would be liable under its bond for the negligent use of a vehicle by a Sheriff or peace officer in the course of performing his official duty (Duran v. Mission Mortuary, 174 Kan. 565, 578-580; Jones v. Buckelew, 247 Ala. 475; Rutledge v. Small, 192 S. C. 254, 260-261; United States Fid. & Guar. Co. v. Samuels, 116 Ohio St. 586; Curnyn v. Kinney, 119 Neb. 478; Fidelity & Cas. Co. v. Boehnlein, 202 Ky. 601). Thus in the last-cited case the court stated (p. 603): “By all the authorities, an official bond for the faithful performance of official duties covers misfeasance, malfeasance, and nonfeasance, as counsel for appellant concede, but their argument assumes negligence in the operation of a motorcycle by a policeman is none of these. Such an assumption has neither authority nor reason to support it.”

To hold the county liable in this case for the acts of the Sheriff would require us to cast aside the mandate of the Constitution and shift the liability from the surety to the county, which the Constitution directs shall never be made responsible. This may not be done without recourse to a constitutional amendment.

In addition to the substantive questions discussed above, the four defendants raise questions as to certain evidentiary rulings of the trial court which are not of sufficient consequence to merit comment. Accordingly, the judgment appealed from should be affirmed as to defendants Meeker, Mastrangelo and Zambón, with costs to the plaintiff, and reversed as to defendant County of Oneida, with costs to the county against the plaintiff.

Chief Judge Desmond (dissenting).

Judge Froessel’s able opinion speaks for the majority of this court as to the affirmed liability of defendants Meeker, Mastrangelo and Zambón.

However, as -to the alleged immunity of defendant County of Oneida, three of us (Judge Dye’s vote does not reach this question) take the position that there is no constitutional, statutory or other basis for exempting the county from liability for the negligent operation of the county-owned automobile by a Deputy Sheriff. Section 5 of article IX of our State Constitution cannot reasonably be read to produce so anomalous- and unreasonable a result. That ancient provision protects counties from the consequences of wrongful performance by Sheriffs of the historic, conventional duties of the centuries-old office of Sheriff. Of course, the Constitution does say literally that “ the county shall never be made responsible for the acts of the sheriff”. That sentence, however, connects itself with the one before it by the use of the word “But”. The Sheriff must give and keep in effect a surety bond to protect the county from his misfeasance or malfeasance, but, regardless of such security, the county is immunized from liability for his conduct of the office of Sheriff. Such a provision has nothing whatever to do with the negligent handling of a county-owned automobile which happens to be driven by a county employee paid by the county but carrying the title of ‘ ‘ deputy sheriff ’ ’. The delegates to the 1938 constitutional convention could not have intended to produce such a result by leaving section 5 of article IX in our State charter.

The judgment should be in all respects affirmed, with costs.

As to defendants Meeker and Mastrangelo: Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel.

As to defendant Zambón: Judges Dye, Van Voorhis and Foster dissent and vote to reverse and to dismiss the complaint as against him upon the ground that the evidence is insufficient to establish his negligence as a matter of law.

As to defendant County of Oneida: Judges Van Voorhis and Foster concur upon the ground stated in the opinion of Judge Froessel and upon the further ground that the evidence is insufficient to establish its negligence as a matter of law; Judge Dye concurs in result only upon the ground that the evidence is insufficient as a matter of law to establish its negligence; Chief Judge Desmond dissents and votes to affirm in an opinion in which Judges Fuld and Burke concur.

Judgment, insofar as appealed from by defendants Meeker, Mastrangelo and Zambón, affirmed, with costs to plaintiff; insofar as appealed from by defendant County of Oneida reversed, with costs to the county against plaintiff in all courts.  