
    Daniel Higbie, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    November 29, 1907.
    Municipal corporations —board of education—negligence — respondeat superior — fellow-servant.
    The doctrine of respondeat superior applies to municipal or governmental corporations in respect to those duties put upon them. It. applies in an action against the board of education of the city of New York to recover for injuries received by one employed as a cleaner in a public school.
    But such cleaner is not entitled to recover for burns received from a mixture which the janitor of a schoolhouse ordered him to use to clean water closets, for the negligence of the janitor, if any, was that of a fellow-servant.
    Appeal by the plaintiff, Daniel ITigbie, from a judgment of the , Supreme Court im favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of January, 1907, upon the dismissal of the complaint by direction of the court at the opening of the plaintiff’s case upon a trial at the Queens County Trial Term.
    
      James C. Van Siclen, for the appellant.
    
      Theodore Connoly [Royal E. T. Riggs and William B. Ellison with him on the brief], for the respondent.
   Gaynor, J.:

The complaint was dismissed on the opening on the ground, it is • said, that the defendant is not liable for the negligent acts or omissions of its employes — that the rule of respondeat superior does not apply to it. The case stated by counsel was that the plaintiff was employed by the defendant as a cleaner in a. school house under the janitor thereof; that the janitor gave him a pail of mixture of water and some other liquid and told him to clean the water closets with it, and that in using it it burned his hands. The complaint says the liquid mixed with the water was some kind of an acid, and the negligence charged therein is that the defendant did not give the plaintiff proper warning and instructions in respect to the mixture.

The doctrine of respondeat superior applies to municipal or governmental corporations in respect of duties put upon them. Cases like Maxmilian v. Mayor (62 N. Y. 160), Ham v. Mayor (70 id. 459), Donovan v. Board of Education (85 id. 117) and Bassett v. Fish (75 id. 303) are not to the contrary when read with discrimination. They merely hold that a municipal corporation is not liable for the acts or omissions of officers who though appointed by it or by the mayor or some other officer of it by statutory direction have only duties which belong to the administration Of the state government to perform, such as in public education, the public charities, the police, the prevention and extinction of 'fires, and the like, and which are not put upon the corporation, instead of duties put upon the corporation itself by statute. In Bassett v. Fish (75 N. Y. 303) it was held that the trustees of a school district: were not liable for negligence for a hole in the school’ house floor, for the reason that the board of education of the district was a full body corporate, and liable for such negligence,-the duty of taking care of the school house being put upon it by the statute, and it being therefore liable for the negligent acts or omissions of its officers or agents, which the trustees were. 'That the rule of respondeat superior does not apply to a public officer in respect of the negligent acts or omissions of persons employed or appointéd by him to assist in the performance of liis duties, as was decided in Donovan v. McAlpin (85 N. Y. 185), does not gainsay that such rule does apply to a municipal or governmental corporation in respect of its duties (Bieling v. City of Brooklyn, 120 N. Y. 98). If it be'said that there is no logicalfoundation for such a distinction, it suffices that the distinction exists by controlling authority, and against that logic has to give way for the time being in the law. The headnote to the report of the case of Wahrman v. Board of Education (187 N. Y. 331) does not state that a municipal or governmental corporation is not subject to the rule of respondeat superior, and the opinion read with discrimination, arid in connection with the cases it cites, does not require us to so hold in the face of all the explicit authority to the contrary Indeed, cases based on the contrary are tried in our courts daily and upheld on appeal.

But in this case if there was any negligence, it was that of a fellow-servant in putting too much of the acid in the water. The mixing of water and acids for the cleaning of sinks and water-closets is a common thing by servants in households."

The judgment should be affirmed.

Woodward, Hooker and Rich, JJ., concurred; Jenks, J., concurred in result.

Judgment affirmed, with costs.  