
    Edmund F. Gaetjens, an Infant, by August Gaetjens, His Guardian ad Litem, Respondent, Appellant, v. The City of New York and the Flatbush Gas Company, Appellants, Impleaded with The New York and New Jersey Telephone Company, Respondent.
    Second Department,
    May 7, 1909.
    Municipal corporation — negligence— liability for acts of departments' which are public agencies — injury hy fall of wire erected by fire department— appeal—when judgment reversed as to all defendants.
    A city is not liable for the tortious act or neglect of its departments of police, fire', education or charity, nor for the acts of the officials or employees of such departments,
    
      Thus, the city of New York is not liable for injuries caused by the fall of wires put up by the fire department in the discharge of its duties, nor is it under the obligation to inspect and care for such wires.
    Under a complaint seeking to hold the city of New York for liability for injuries caused by wires erected by the fire department upon the theory that the city erected and controlled the wires, a recovery cannot be sustained on the ground that thé city did not remove the wire from the street after it fell, or from the pole before it broke after abandonment by the fire department, when no such questions were presented to the jury.
    . Where it appears that a verdict against some defendants resulted from an erroneous ruling as to the liability of others, the judgment will be reversed as to all.
    Keargtjment of .cross-appeals by the plaintiff, Edmund F. Gaetjens, an infant, etc., and by the defendants, The City of New York and the Flatbush Gas Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the loth day of October, 1906, upon the verdict of a jury, and also from respective orders entered in said clerk’s office on the 22d day of October, 1906, denying respectively motions made by the plaintiff and by the said defendants for a new trial on the minutes. (See Gaetyens v. City of New Yorl&, 129 App. Div. 919.)
    
      Thomas F. Magner [Henry E. Heistad with him on the brief], for the plaintiff.
    
      James D. Bell [P. E. Callahan and Francis K. Pendleton with him on the brief], for the defendant City of New York.
    
      John J. Kuhn [ Owen N. Brown and William N. Dykman with him on the brief], for the. defendant gas company.
    
      Alexander Cameron [ William D. Stiger and Arnold W. Sherman with him on the brief], for the defendant telephone company.
   Gaynor, J.:

I suppose it to be indisputable. that the city is not liable for the tortious acts or neglects of its departments of police, fire, education or charity, or of any official or employe thereof. These departments are not agencies of the city, but public agencies, i. e., they are created by law for the discharge of governmental, i. e., state duties, and not city duties or business'; and therefore the rule respondeat siíperior does not apply to the city in respect of them ( Wilcox v. City of Rochester, 190 N. Y. 137). I have heretofore had to consider this same question (Peaty v. City of New York, 33 Misc. Rep. 231). The fire department having put up and used the wire in the discharge of its duties, the city cannot be made liable-for any negligence of the said department therein. That the said department should suffer the said wire, or the posts or poles upon which it was carried to wear out or decay and fall, would be its negligence alone. The city owed no duty of inspection or care of wire or poles; they were under the control and charge of the state through a state agency. The city had nothing to do with them. To say that the city had the duty of inspection to see that a worn out or unused wire or rotted post was replaced, would be erroneous. But the present case is much worse. The learned trial Judge ruled that the city was responsible for the wire; he "did not and would not recognize at all the non-liability of the city for the negligence of the fire department. The case does not rest on the wire being an obstruction and' danger on the surface of the street after it fell which the city should have removed. Ho such question was presented to the jury. It would involve the length of time the wire . lay on the street, which seems to have been only a few hours, and may not have been long enough to attribute that notice to the city on which its liability would depend. Hor was the case put to the jury on the ground of negligence of the city in not removing the wire from the poles before it broke, on the ground that the fire department abandoned it and it had not grown obviously dangerous. If it had been they might have negatived the facts on which such ground depended. The city was treated as having put the wire up, as being in control and use of it, and therefore responsible for it.

The theory on which the case went to the jury in respect of the city was so erroneous that the verdict as to the other defendants probably resulted therefrom, and the judgment should therefore be reversed as to all.

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

Hirsohberg, P. J., Woodward, Jehus and Miller, JJ., concurred.

Judgment and orders reversed on reargument, without costs, and . new trial granted, costs to abide the event.  