
    Michael E. Gartland, Respondent, v. New York Zoological Society, Appellant.
    First Department,
    December 17, 1909.
    Negligence — contributory negligence of one acting in emergency — corporations — liability of New York Zoological Society for torts of servants.
    A person acting in an emergency is not guilty of contributory negligence because subsequent events show that it would have been better to have acted differently.
    Thus, where a steamfitter working in a coal hole, on hearing a sudden escape of steam from a boiler in an adjoining room, tried to escape from his position by passing directly in front of the boiler, which was the only mode of exit, he was not guilty of contributory negligence as a matter of law, although it would have been safer to have remained where he was.
    The New York Zoological Society, incorporated by special act authorizing it to maintain a zoological garden for the advancement of science and to furnish recreation for the people, etc., and which, by contract with the city of New York, has assumed the management of the New York Aquarium, is liable under the doctrine of respondeat superior’ for the negligence of persons employed by it to operate a boiler in the aquarium building.
    Such corporation, it seems, is not a charitable organization, and if it were, would still bfe liable for the negligence of its employees causing injury to a person who lawfully came upon its property to make repairs.
    Nor is such corporation a governmental agency so as to escape liability under the doctrine of respondeat superior.
    
    Liability of various departments of municipal corporations for torts of employees discussed, per Clarke, J.
    Appeal by the defendant, the New York Zoological Society, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of January, 1909, affirming a judgment of’the Municipal Court in favor of plaintiff rendered upon the verdict of a jury for $150 in an action for negligence, and also affirming an order denying the defendant’s motions to dismiss the complaint and to set aside the verdict and for a new trial.
    The opinion delivered at file Appellate Term is reported in Gartland v. New York Zoological Society (61 Misc. Rep. 643).
    
      
      William W. Niles of counsel [Niles & Johnson, attorneys], for the appellant.
    
      Ralph G. Barclay of counsel [Robert Stewart, attorney], for the respondent.
   Clarke, J.:

The plaintiff was a steamfitter’s helper, in the employ of one Gerstel, who had a contract with the city of New York, through the department of parks, for installing new boilers and connecting up the same in the Aquarium. building, Battery Park. . Plaintiff and a fellow-workman, .Kelly, were, connecting up some radiator pipes in the' basement in the coal hole adjoining the boiler room containing'two boilers. They were at work connecting these pipes to. the ceiling and were standing, on top of a pile of coal. They suddenly heard a noise of escaping steam and started for the stairs. They had to pass directly in front of the boilers. Plaintiff was injured' by the escaping steam while trying to escape from the room. The exhaust pipes of the boilers had for some time been disconnected' from the drain pipe into which they usually led. Through these exhaust pipes; the boilers were blown off. These boilers were under charge of Tyrrell, the fireman, and Harrison, the engineer, who were employed by the defendant. Harrison and Tyrrell knew that these men were working in the coal hole. Harrison had ordered Tyrrell to blow off .the boilers and had left the boiler room. The valve controlling the blow-off was at the back of the boilers. Tyrrell suddenly turned it on to blow off the boilers without notifying the plaintiff and Kelly.

• There were questions of fact as to the negligence of Harrison and Tyrrell and as to plaintiff’s freedom from contributory .negligence. Certainly upon hearing this loud explosive sound and seeing this cloud of steam Kelly and Gartland were not called upon to remain where they were and possibly be boiled' to death. They did what usually a man would do, attempted to escape through the only known means of exit. Plaintiff’s conduct in a sudden emergency is not to be condemned because subsequent events might show a better procedure. It was for the jury to say whether under the circumstances he was free from negligence, and the question has been resolved in his favor.

The main question upon this appeal is whether the defendant corporation is responsible for the negligence of its employees Harrison and Tyrrell under the 'doctrine of respondeat superior. It is a'corporation created under a special act, chapter 435 of the Laws of 1895, entitled “An act to incorporate the Hew York Zoological Society and to provide for the establishment of a zoological garden in the city of Hew York.” Section 2 of the act, as amended by chapter 146 of the Laws of 1902, provides that “ Said corporation shall have power to establish, maintain and control zoological parks, gardens or other collections for the promotion of zoology and kindred subjects, and for the instruction and recreation of the people. Said corporation may collect, hold and expend funds for zoological research and publication, for the protection of wild animal life, and for kindred purposes, and may promote, form and cooperate with other associations with similar purposes and may purchase, sell or exchange animals, plants and specimens appropriate to the objects for which it was created. ” Section 4, as thus amended, provides that “ no manager of said corporation shall be interested, directly or indirectly, in any contract concerning its property or affairs.” Section 5: Said corporation may raise money by the issue of its bonds, secured by a mortgage, on any or all of its property not acquired from said city or State.” Section 6 : Said corporation may take, purchase and hold real and personal estate necessary for the purpose of its incorporation, the net annual income of which shall not exceed fifty thousand dollars, and shall possess the general powers and be subject to the restrictions and liabilities prescribed in the third title of the eighteenth chapter of the first part of the Revised Statutes.’’ Section 7 : “ The commissioners of the sinking fund of the said city are authorized in their discretion to allot, set apart and appropriate for the use of said corporation any of the lands belonging to said city north of • One Hundred and Fifty-fifth street, * * * said grounds thus set apart and appropriated shall be used for no purpose whatsoever except those aforesaid. As soon as any lands are set apart, the mayor of the said city of- Hew York and the president of the department of parks of said city shall become arid be ex-offieio members of the board of managers.” -Section 8: “ Admission to the said garden shall be free to the public for. at least four days, one of which sliall be Sunday, ill each week, subject to such rules and regulations as shall be prescribed by said corporation.”

Chapter 441 of the Laws of 1902, entitled “ An Act to authorize a. further appropriation to-the New York Zoological Society for the support of the New York Aquarium,” provides that “The board of estimate and apportionment of the city of New York may annually, in its discretion, include in the budget for the then next ensuing financial year, in addition to any sum or sums which may be appropriated for the adequate support and maintenance of the New York zoological park or gardens, situated in "the borough of the Bronx, and administered and controlled by the New York Zoological Society, a further sum or sums, not exceeding fifty thousand dollars, for the use of the said Sew York Zoological Society;, provided, however, that the additional appropriation hereby authorized .shall be made only in case an agreement is entered into between the.said New York Zoological Society and the city of New York, acting by its board of estimate and apportionment, for the adequate keeping, maintenance, extension, preservation and exhibition of the building and approaches thereto and collections of aquatic animals and plants contained therein, known as the New York Aquarium, situated in the Battery Park, in the borough of Manhattan, in said city, and also for furnishing opportunities for study, research and publication in connection with said collections, which contract' the said board of estimate and apportionment is hereby expressly authorized, in its discretion, to make upon such terms and conditions as may be agreed upon with the said.New York Zoological Society, and which contract shall also provide how the duty of the commissioner of parks for the boroughs of Manhattan and Pichmond in respect to main-, taming the said aquarium now imposed upon him by law shall be performed.”

Section 626 of the revised charter (Laws of 1901, chap. 466) provides that “ The commissioner for the borough of The Bronx is hereby anthorizéd and directed to carry out the contract made by and between the department of public .parks and the sinking •fund commissioners * * * with the board of managers' of the corporation, known as the New York Zoological Society, * * * if such a contract Shall have been entered into prior to the passage of this act. If no such contract shall have been entered into, * * * said commissioner, * * * with the consent and approval of the sinking fund commissioners, * * * is hereby authorized to enter into a contract in behalf of The City of New York with said New York Zoological Society allotting and setting apart for the use of said society a tract of land in Bronx Park, in said borough of The Bronx, upon, such terms and condi* tions as shall be approved by the said commissioner ■ and said sinking fund commissioners.”

Section 613 provides: “It shall be the duty of the park commissioner for the boroughs of Manhattan and Richmond to maintain * * * the Aquarium in Battery Place.”

October 13, 1902, a contract was entered into between the city, acting by its board of estimate and apportionment, and the New York Zoological Society, which recited chapter 441 of the Laws of 1902, arid the desire of the city to transfer the entire control and management of the aquarium, together with the equipment and collections contained therein; it was mutually agreed that the society, in consideration of the transfer to it of the use and possession of said building known as the New York Aquarium and its contents, agrees that it will during the existence of this agreement adequately keep, maintain, extend, preserve and exhibit the said building and approaches thereto and collections of aquatic animals and plants contained therein. “As soon as practicable after the execution of this agreement, * * * the party bf the first part shall transfer, and the party of the second part shall take over the said building and contents; and from and after such date the party of the second part shall have the exclusive use and possession of the said building and its contents, subject to the provisions of this agreement.” Except for damages by fire “ the party of the first part shall at all times keep in repair and in good condition the said building and approaches thereto, and also the machinery and stationary equipment contained therein, and shall make, at its own proper cost and expense, such changes, repairs, alterations or renewals in the building, machinery and stationary equipment as may from time to time be agreed upon between' the party of the first part (acting by its commissioner of parks for the boroughs of Manhattan and Richmond) and the party of the second part.” The city agreed to annually provide not less than $45,000 which should be

expended "by the party of the second part for the adequate keeping, maintenance, extension, preservation and exhibition of said building and approaches thereto and for the. increase, preservation, transformation, renewal and exhibition of the- collections therein, -. and for scientific, educational and administrative work in connection therewith; for publication and the general expenses of the party of the second .part in connection with the aquarium ; for the . expenses of any expedition, or of any employee or employees of the party of the second part sent out for the purpose of increasing-the Collections of the aquarium;' or for educational- or scientific work or study in connection therewith; for the "expenses of the exhibition of any of the aquarium collections in public schools or elsewhere ; for books, maps, charts or other articles relating to or needed in the aquarium; for the purchase of any or all machinery, apparatus, supplies, labels, pictures, paintings or other articles or equipment needed for the maintenance, renewal and extension of the collections, or the study and display of the same, and for any and all expenses incurred in-the prosecution, illustration and publication of scientific, artistic or other studies in connection with said Collections. All the collections, equipment and other personal property now in the ¡New York Aquarium shall remain the , property of the party of the first part, but the party of the second part shall have the entire control and management and exclusive use of the same, and may at any time sell, exhibit, loan or exchange any or all of the specimens contained in such collections, or hereafter acquired or purchased with" money supplied by the party of the first. part, provided, however, that the net proceeds of such sales or exchanges shall be devoted by the party of the second part solely to the benefit or increase of the Collections in said aquarium, and -all property so acquired shall become and remain the property of the party of the first part. All property placed in "the said aquarium which may be purchased by funds belonging to the party of the second part and not contributed by the party of the first part, shall continue to be and remain absolutely the property of the said party of the second part. * * * The said aquarium shall be open and accessible to the public, without any charge or gratuity, •on a portion, at least, of each and every day of the year.” No admission shall be charged. The use of the library, apparatus and cob lections shall be granted to all professors and teachers of the public schools or other institutions of learning, upon such terms and conditions as the party of the second part may prescribe, but without any charge or gratuity. “ During the existence of this agreement the said party of the second part shall ha.vo the absolute power to appoint, direct, control and remove all persons "employed in and about said building and its collections, and to fix and adjust the salaries of all such persons; and shall be responsible for the same; and shall have power to make all rules and regulations respecting duties for all its employees in and about the aquarium and the general management and administration of the aquarium and its collections without any restriction or limitation whatsoever, except as in this agreement contained.” It is further provided that whenever any approval or direction was required by the terms of tlie agreement that such direction should be by the commissioner of parks of the boroughs of Manhattan and Bichinoiid.

To avoid liability the appellant claims, first, that it is a charitable corporation and not liable in an action of this kind; second, that it was a mere trustee for a public purpose and is not liable for the negligent act, if any, which resulted in the injury to plaintiff ; that it was a mere governmental agency acting for the municipality and entitled to the same immunities from liability for .damages a's is conceded to the city itself and to all its municipal divisions.

We should have great difficulty in determining that this corporation, under its act of incorporation, its enabling act and its contract with the city, was a charitable organization within the classification of any of the corporations which, from time to time, for one reason or another, have been relieved of responsibility for the torts of their employees. It dispenses no alms; it relieves no suffering; it caves for no sick. While it is true it is not a money-making institution this is not controlling. Its purposes and its work are to amuse and to instruct, and if we were called upon to classify it we should say that it came closer to an institution for recreation with incidental education than any other recognized .classification.

But even if it were a charitable institution, we think it would still be liable. Here is a tort committed by one of its employees by reason of which a person who was lawfully upon the property controlled by the defendant- in the prosecution .of a lawful work has received injury. He was not á beneficiary of a charity. Nor was tlie negligent employee in an independent employment, as a surgeon or a trained nurse; It seems to us that the case is governed by the recent decision in Kellogg v. Church Charity Foundation (128 App. Div. 214). ’In that case the action was to recover for injuries to the plaintiff by being run into in the street by an ambulance of the defendant by the negligence of the driver. In the opinion of the learned Appellate Division in the Second Department a large niunber of cases were cited.and: examined, and the conclusion was reached that'there was no exemption in the law by which a purely charitable organization could be relieved of responsibility upon the facts- there presented for the negligence of its employee; that the doctrine of respondeat superior did apply, We are satisfied with the conclusion reached and can add nothing to the discussion.

As to the claim that this- corporation is a governmental agency, and, therefore, exempt, it is clearly not a governmental agency. The building in which' the accident occurred is upon land of the city used for a public park, and prior to the contract under which the defendant corporation now. controls it, it was under tlie Jurisdiction and management of the department of parks. But the city-is responsible for torts committed by many of its agents, and for negligence in the maintenance of its property. .It is not responsible for the torts of the police (Woodhull v. Mayor, etc., 150 N. Y. 450), but it is responsible for the torts of its employees in tlie street cleaning department.' (Missano v. Mayor, 160 N. Y. 123.) In the one case the police are engaged in a governmental, function ; in the other the street cleaners are performing a duty put upon the city to keep its streets clean “ in the exercise of which it is a legal individual ás distinguished from its governmental functions when it acts as a sovereign.” Its duty in regard, to the condition of its streets and its parks and public places is not governmental, so that it is relieved from responsibility for negligence.. This was settled, so far as the department of parks is concerned, by. Ehrgott v. Mayor, etc., of City of N. Y. (96 N. Y. 264).

Branches of'the public service’ which have- been held by the courts to exercise governmental functions are : The fire department (Springfield Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46); the charities and corrections department (Maxmilian v. Mayor, 62 id. 160), and the police department (Woodhull v. Mayor, etc., 150 id. 450).

But there is no governmental duty put upon the municipality to provide parks and pleasure grounds, and collections of wild animals or fish, or paintings, or books, except in the large sense that a great city may with propriety consider the aesthetic and not be confined to the practical. But it is not the park department, nor the city, which is being sued for the tort of one of its employees. It is a private corporation, with whom a contract has been made under which the absolute control of the building and all its employees was intrusted to it. The language of the contract is that it shall have “ the absolute power to appoint, direct, control and remove all per. sons employed in and about said building and its collections, and to fix and ad just the salaries of all such persons; and shall be responsible for the same; and shall have power to make all rules and regulations respecting duties for all its employees in and about the aquarium and the general management and administration of the aquarium and its collections, without any restriction or limitation whatsoever, except as in this agreement contained.” Ho public officer in the city of Hew York has any such power as that over his subordinates. Such freedom of action is now reserved solely to private employers. Said Folger, J., in Maxmilian v. Mayor (62 N. Y. 160): “ This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, or skillful or well behaved, and to direct and control them while in his employ. (Kelly v. The Mayor, 11 N. Y. 432.) The rule has no application .to a case in which this power does not exist. (Blake v. Ferris, 5 N. Y. 48.) It results from the rule being thus based that there can be but one superior at the same time and in relation to the same transaction.” The facts here shown bring this case within the doctrine so stated.

We find no authority to sustain the claims of the appellant and we think there is every reason why we should reject them. It controls parts of the .city property upon which it states it receives millions of visitors every year. Its control over such property and buildings, the appointment, direction and discharge of its employees is absolute. With this power it should realize- its responsibilities and be held to that measure of responsibility which every employer has to meet under the law.'

The determination appealed from should be affirmed, with costs and disbursements- to the respondent.

Patterson, P. J., Ingraham, McLaughlin and Lafghlin,JJ., concurred. ' .

Determination affirmed, with costs.  