
    Lena Ackley, as Guardian ad Litem of Peter Ackley, an Infant, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    May 26, 1916.
    Negligence — injury to infant confined in industrial school for truancy — status of convicted infant—when board of education not liable for personal injuries to infant.
    An infant convicted by a magistrate of truancy, and committed to the New York Parental School, maintained by the board of education of the city of New York for industrial training, has the status of a convicted person sentenced to confinement.
    Where such infant is placed at work upon a printing press in said institution, the work is in the nature of a penalty imposed by law, and he cannot recover against said board of education for personal injuries received while operating the press.
    Such infant has the status of a person convicted as a disorderly person, although the provisions allowing the conviction are found in the Education Law."
    
      An infant injured under the circumstances aforesaid is not entitled to the benefit of the provisions of the Labor Law, as there is no relation of master and servant, which must arise out of a contract express or implied.
    Appeal by the plaintiff, Peter Ackley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 27th day of March, 1915, upon a dismissal of the complaint by direction of the court at the opening of plaintiff’s case.
    
      Edwin P. Kilroe [Louis E. Smarts with him on the brief], for the appellant.
    
      William E. C. Mayer [Terence Farley, Edward S. Malone and Lamar Hardy with him on the brief], for the respondent.
   Jenks, P. J.:

The infant plaintiff, when at work upon a printing press, had his knee caught in cogwheels and was injured. He sues for negligence, but was dismissed rightfully upon the complaint and the opening of his case.

The learned counsel for the plaintiff stated at Trial Term that his opening was but amplification of the complaint. We read in the complaint that it charges negligence in failure to provide instruction and training, or a safe place for work, or proper rules for working and guarding machinery, or proper guards for machinery, or a competent person to take charge of the work. We read that the plaintiff had been committed to the Brooklyn Truant School by a magistrate, and thence transferred and committed to the New York Parental School, where he was an inmate at the time of this casualty. The defendant is charged with the said negligence in that it conducted and maintained the said school under its care, management, supervision and control; that pursuant to its orders the superintendent in charge managed and directed the school, and that the plaintiff was assigned to work in the printing shop or pressroom by the managers, supervisors and directors of said school, who were the duly authorized servants, agents and representatives of the defendant.

We must consider the case as if a demurrer for insufficiency had been interposed. (Ketchum v. Van Dusen, 11 App. Div. 332.) The defendant is a branch of the State government, charged by the State with the administration of its educational system in the city of New York. (Ham v. Mayor, 70 N. Y. 459; Gunnison v. Board of Education, 176 id. 11; Schieffelin v. Komfort, 212 id. 528.) The establishment of a truant school, the reception and detention of the plaintiff therein, and his industrial training therein, are all prescribed by the Education Law (Consol. Laws, chap. 16; Laws of 1910, chap. 140), and by the Greater New York charter (Laws of 1901, chap. 466, § 1055 et seq., as amd.; Id. § 1069, as amd. by Laws of 1904, chap. 542.)

I think that the status of this plaintiff as an inmate of such institution is analogous to that of a convict. He had been placed in the institution by the command of law. The statute authorizes “ arrest ” of “ habitual and incorrigible truants,” the bringing of them “before a police magistrate for commitment to a truant school ” (Education Law [Consol. Laws, chap. 16; Laws of 1910, chap. 140], § 633), directs that such child “shall be proceeded against as a disorderly person, and upon conviction thereof ” that it “ shall be sentenced to be confined and maintained in such truant school for á period not exceeding two years.” (§§ 635 and 636.) And the statute also provides: “ Such school or room shall be known as a truant school; but no person convicted of crimes or misdemeanors, other than truancy, shall be committed thereto.” (§ 635.) Instead of being committed to a prison or jail, the infant plaintiff was committed to a place where he would not be contaminated by association with older persons who were hardened criminals, and where, while still in the formative period, he could both be educated and be taught some industrial pursuit. So far as the disposition of this case is concerned, there is no difference between bis status and that of the inmate of a prison. The work doing by him at the time of the casualty was imposed upon him by the State and was a penalty, so to speak, of his confinement. (See Corbett v. St. Vincent’s Industrial School, 177 N. Y. 16.)

The learned counsel for the appellant lays stress upon the fact that these provisions are not in the Penal Law, but are in the Education Law. It seems to me that such is their logical place, inasmuch as their purpose is to compel the “habitual and incorrigible truants ” to learn — to become educated, not for the good of the individual alone, hut for that of the collectivity also. Moreover, it must be remembered that the statutes place such an one in the status of a “ disorderly person,” and section 39 of the Penal Law provides: “ This chapter does not affect any power conferred by law upon any court-martial or other military authority or officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal or officers, to impose or inflict punishment for a contempt; nor any provisions of the laws relating to apprentices, bastards, disorderly persons, Indians and vagrants, except so far as any provisions therein are inconsistent with this chapter.” (See, too, Code Crim. Proc. pt. 6, tit. 7.)

This case is controlled by the rule that is declared and applied in Lewis v. State (96 N. Y. 71) and Corbett v. St. Vincent’s Industrial School (supra).

The Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd.) does not help the plaintiff, because the relation between him and the defendant was not that of master and servant, nor that of employer and employee. (Corbett v. St. Vincent’s Industrial School, supra.) Such a relation arises upon contract, express or implied. (Stevens v. Armstrong, 6 N. Y. 442.)

The judgment must be affirmed, with costs.

Present—Jenks, P. J., Thomas, Carr, Mills and Rich, JJ.

Judgment unanimously affirmed, with costs. 
      
       Since amd. by Laws of 1914, chap. 479.—[Rep.
     