
    Frank Poniatowski, Appellant, v. City of New York, Respondent.
    Argued February 17, 1964;
    decided March 26, 1964.
    
      
      Joseph Kelner and Benjamin H. Siff for appellant.
    I. Sections 50-a and 50-b of the General Municipal Law making a municipality liable for the negligence of an appointed operator of a motor vehicle in the performance of police duties did not make plaintiff and Budris such fellow employees as to invoke the fellow-servant rule. (Fay v. De Camp, 257 N. Y. 407; Seltzkorn v. City of Buffalo, 219 App. Div. 416, 246 N. Y. 605; Van Buren v. Town of Richmondville, 253 App. Div. 484, 278 N. Y. 619; Matter of Evans v. Berry, 262 N. Y. 61; Miller v. Town of Irondequoit, 243 App. Div. 240; Ottmann v. Village of Rockville Centre, 273 N. Y. 205; Shanahan v. Monarch Eng. Co., 219 N. Y. 469; Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27; Lunderberg v. Bierman, 241 Minn. 349; Koerner v. St. Louis Car Co., 209 Mo. 141; Buss v. Wachsmith, 190 Wash. 673, 193 Wash. 600; Woods v. Lancet, 303 N. Y. 349; Bing v. 
      Thunig, 2 N Y 2d 656; Robinson v. City of Albany, 14 A D 2d 626; City of Albany v. Standard Acc. Ins. Co., 7 N Y 2d 422;; Wiseman v. City of New York, 13 A D 2d 796, 10 N Y 2d 952; Miller v. City of New York, 266 App. Div. 565, 292 N. Y. 571.) II. If plaintiff and Budris were fellow employees, then the' provisions of section 8 of the Court of Claims Act preclude; the application of the fellow-servant rule in this case.. (Bernardine v. City of New York, 294 N. Y. 361; Erjauschek v. Kramer, 141 App. Div. 545; Fay v. De Camp, 257 N. Y. 407.)
    
      Leo A. Larkin, Corporation Counsel (John A. Murray, Seymour B. Quel and Fred Iscol of counsel), for respondent..
    I. The complaint was properly dismissed on the law. Under the particular circumstances of this case, plaintiff may not; recover as against his employer for injuries sustained through the charged negligence of his fellow servant and especially where, as here, it is apparent that plaintiff himself was guilty of contributory negligence as a matter of law. (City of Albany v. Standard Acc. Ins. Co., 7 N Y 2d 422; Riley v. Carlton,. 290 N. Y. 913; Fay v. De Camp, 257 N. Y. 407; Judson v. Village of Olean, 116 N. Y. 655; Stringham v. Hilton, 111 N. Y. 188;; Loughlin v. State of New York, 105 N. Y. 159; Glennie v. Falls Equip. Co., 238 App. Div. 7; McCormick v. City of New York,. 162 App. Div. 539; Erjauschek v. Kramer, 141 App. Div. 545; Kosiba v. City of Syracuse, 287 N. Y. 283; Ottmann v. Village of Rockville Centre, 248 App. Div. 592, 273 N. Y. 205; Robinson v. City of Albany, 14 A D 2d 626; Bernardine v. City of New York, 268 App. Div. 444, 294 N. Y. 361; Berger v. City of New York, 260 App. Div. 402, 285 N. Y. 723; Miller v. Town of Irondequoit, 243 App. Div. 240, 268 N. Y. 578; Moore v. City of Yonkers, 6 A D 2d 712, 5 N Y 2d 765; Matter of Ryan v. City of New York, 228 N. Y. 16; Curtis v. Fide, 19 A D 2d 507; Nelson v. Nygren, 259 N. Y. 71; Merkling v. Ford Motor Corp., 251 App. Div. 89 ; Squadrito v. Griebsch, 1 N Y 2d 471; Brown v. Associated Operating Co., 165 App. Div. 702, 222 N. Y. 566.) II. In any event, defendant should have been allowed to establish plaintiff’s retirement for disability and the amount of pension in mitigation of damages. (Healy v. Rennert, 9 N Y 2d 202; Cady v. City of New York, 19 A D 2d 822; Nykanen v. City of New York. 19 A D 2d 535; Geary v. 
      Metropolitan St. Ry. Co., 73 App. Div. 441, 84 App. Div. 514, 177 N. Y. 535; United States v. Brooks, 176 F. 2d 482, 337 U. S. 49; United States v. Brotan, 348 U. S. 110.)
    
      Edward M. Edenbaum for Uniformed Firemen’s Association of Greater New York, amicus curiae.
    
    I. Revival of the fellow-servant doctrine would disrupt the plan of policemen’s and firemen’s remedies which has been sanctioned by the Legislature for over 30 years. (Ottmann v. Village of Rockville Centre, 273 N. Y. 205, 275 N. Y. 270; Poulakis v. Village of Freeport, 7 Misc 2d 1005; Robinson v. City of Albany, 14 A D 2d 626; Miller v. City of Albany, 158 Misc. 720, 247 App. Div. 848; Van Buren v. Town of Richmondville, 253 App. Div. 484, 278 N. Y. 619; Wiseman v. City of New York, 13 A D 2d 796, 10 N Y 2d 952; City of Albany v. Standard Acc. Ins. Co., 7 N Y 2d 422; Rauch v. Jones, 4 N Y 2d 592; Naso v. Lafata, 4 N Y 2d 585.) II. Policemen and firemen, as State officers, are not ‘ ‘ fellow servants ’ ’. (Matter of Hens v. Colucci, 18 A D 2d 762; Sheehan v. North Country Community Hosp., 273 N. Y. 163.)
    
      Charles Ballon, Eugene M. Kline and Michael J. Silverberg for Patrolmen’s Benevolent Association of the City of New York, Inc., amicus curiae.
    
    The fellow-servant doctrine is inapplicable to the statutory liability of the city in this case. (Priestley v. Fowler, 3 Mees. & Wels. 1; Bernardine v. City of New York, 294 N. Y. 361; Ottmann v. Village of Rockville Centre, 275 N. Y. 270; Kosiba v. City of Syracuse, 287 N. Y. 283; Van Buren v. Town of Richmondville, 253 App. Div. 484, 278 N. Y. 619; Miller v. City of Albany, 158 Misc. 720, 247 App. Div. 848; Wiseman v. City of New York, 10 N Y 2d 952; Robinson v. City of Albany, 14 A D 2d 626.)
   Fuld, J.

The fellow-servant doctrine should not be applied in a case, such as the present, where a New York City police officer, serving in a police car as a " recorder ”, was injured when the car, operated by a fellow officer, collided with another automobile while in pursuit of a third vehicle.

At common law, police officers engaged in police work were regarded not as employees or servants of the municipality but rather as agents performing a public duty and a governmental function. In consequence, the municipality was immune from suit for injuries to third parties caused by negligence on the part of such officers. (See, e.g., Matter of Evans v. Berry, 262 N. Y. 61, 67-68; Bernardine v. City of New York, 294 N. Y. 361, 366.) With the growth of motorized transportation, it became apparent that redress should be afforded persons injured through the negligent operation of municipally owned vehicles by municipal officers. Accordingly, in 1929, section 282-g of the Highway Law was enacted to remedy this situation, and we are here concerned with its successor statutes, sections 50-a and 50-b of the General Municipal Law, which in all essential respects are the same as the earlier provision.

Section 50-a recites that ‘ ‘ Every city * * * shall be liable for the negligence of a person duly appointed by the governing board or body of the municipality * * * to operate a municipally owned vehicle within the state in the discharge of a statutory duty imposed upon the municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment ” and, then, in order to emphasize the city’s liability even for the negligent operation of vehicles by those who had been regarded as governmental officers or agents rather than as servants or employees, the statute goes on to provide that “Every * * * appointee shall, for the purpose of this section, be deemed an employee of the municipality, notwithstanding the vehicle was being operated in the discharge of a public duty for the benefit of all citizens of the community and the municipality derived no special benefit in its corporate capacity.” And section 50-b, dealing with the same subject, declares that the city shall be liable and shall assume the liability for the negligence of the person operating the vehicle.

As indicated, the purpose of the statute is to impose liability upon the city for the negligent operation of vehicles by police and other municipal officers and thereby overcome the hardship visited upon those who, injured by such negligence, would otherwise be without remedy. There is no reason for not extending the relief thus afforded private persons to the police driver’s fellow officers as well. Had the Legislature intended to exclude them from the statute’s coverage, it could easily have so provided. It chose, instead, to denominate as an employee of the municipality solely the person operating the vehicle “ in the discharge of a statutory duty ”.

In point of fact, this court and the Appellate Division have, in the past, actually upheld recovery by policemen or firemen injured, while riding as passengers in municipally owned vehicles, through the negligence of fellow officers who were operating the vehicles. (See, e.g., Wiseman v. City of New York, 10 N Y 2d 952; Miller v. City of New York, 292 N. Y. 571; Robinson v. City of Albany, 14 A D 2d 626; Miller v. City of Albany, 158 Misc. 720 [per Foster, J.], affd. 247 App. Div. 848; see, also, Ottmann v. Village of Rockville Centre, 273 N. Y. 205, 206.) In the recent Wiseman case (10 N Y 2d 952, supra), for instance, the administratrix of a deceased police officer brought an action against the City of New York for wrongful death arising out of a collision between a police car in which her husband had been a passenger and another vehicle. Although the city did not in that case rely on the fellow-servant doctrine, it did oppose recovery on the closely related ground of assumption of risk (of a collision owing to the negligence of the driver as one of the hazards of his, the passenger’s, job) and this court had no hesitancy in affirming the judgment in favor of the plaintiff.

The inherent injustice of a rule which denies a person, free of fault, the right to recover for injuries sustained through the negligence of another over whose conduct he has no control merely because of the fortuitous circumstance that the other is a fellow officer is manifest. Dean Prosser has characterized the fellow-servant rule as “wicked” (Prosser, Torts [2d ed., 1955], p. 383) and one court has described it as resulting in “ gross injustice ” and as “ callous to human rights ”. (Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 47.) This may well suggest the desirability of abolishing the rule but we leave decision of that question to the future. It is sufficient at this time to decide only that we should not extend it into an area in which it has not previously been applied.

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and that of the Trial Term reinstated.

Van Voorhis, J.

(dissenting). The fellow-servant rule is antiquated and should, perhaps, be abolished, but unless it is eliminated I find no escape from the decision by the Appellate Division in applying it to the facts of this case. We should not, in this instance, endeavor to escape the effect of a rule which may be obsolete by reviving another which has been superseded, viz., that a police officer is not an employee of a municipality but is an independent public officer not subject to the rule of respondeat superior. That theory was abandoned with the waiver of immunity by the adoption of section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N. Y. 361), and since then municipalities have been repeatedly held liable on a master and servant basis for every variety of negligence by its policemen — a result that could only have been reached on the basis that policemen are employees of the municipality. On that basis, and no other, Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N. Y. 726); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N Y 2d 455); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N. Y. 498); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N. Y. 114); to the estate of a man arrested for public intoxication who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O’Grady v. City of Fulton, 4 N Y 2d 717); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A D 2d 465); and to a bystander injured while directing traffic at the instance of a police officer (Adamo v. P. G. Motor Freight, 4 A D 2d 758). In McCrink v. City of New York (296 N. Y. 99) a city was held liable for negligently having omitted to discharge a police officer by whom plaintiff’s intestate was shot. In Meistinsky v. City of New York (309 N. Y. 998) the estate of a hold-up victim recovered who had been killed by an untrained officer’s bullets.” (Schuster v. City of New York, 5 N Y 2d 75, 81-82.)

Unless the fellow-servant rule is abolished, which is not being done, I vote to affirm for these reasons on the opinion of the Appellate Division.

Chief Judge Desmond and Judges Burke, Scileppi and Bergan concur with Judge Fuld; Judge Van Voorhis dissents in an opinion in which Judge Dye concurs.

Judgment reversed, etc. 
      
      . As to the city’s further contention that it was entitled to show, in mitigation of damages, the amount of pension received by the plaintiff following his retirement for accident disability, see Cady v. City of New York (19 A D 2d 822, affd. 14 N Y 2d 660).
     