
    William Rhall, an Infant, by John Rhall, his Guardian ad Litem, Appellant, v. The Board of Education in the City of New York, Respondent.
    Despondent superior — the rule is not applicable to the relation between a board of education and an attendance officer
    
    Tlie rule of respondeat superior does not apply to the relation existing between a board of education and an attendance officer appointed by it in obedience to the Compulsory Education Law (Laws of 1894, chap. 671, as amd. by Laws of 1896, chap. 606); and a board of education is not liable for the act of an attendance officer who, while pursuing a truant school boy, grasps him between the legs and injures him.
    Appeal by the plaintiff, William Rhall, an infant, by John Rhall, his, guardian acl litem, from a judgment of the Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of New York on the 23d day of March, 1898, upon the dismissal of the complaint upon the pleadings and upon the opening of counsel at a trial at the New York Trial Term; also, from an order entered in said clerk’s office on the 23d day of May, 1898, denying the plaintiff’s motion for a new trial made upon. the minutes.
    The complaint, after setting up the infancy of the plaintiff, the appointment of the guardian ad litem, and the incorporation of the defendant, alleged :
    “ Third. That on or about the 22d day of June, 1897, a servant, agent or employee of the defendant above named,. while in the course of his employment, as said servant, agent or'employee, and while he, the said servant, agent or employee, was attempting to apprehend the plaintiff above named, liej the said servant, agent or employee of the defendant, carelessly, wrongfully and violently assaulted the plaintiff without cause and without his consent, and threw this plaintiff upon the ground and caused his severe and serious injury.
    
      “Fourth. That the acts herein complained of were committed by a servant, agent or employee of the defendant above named while in the course of his employment and while doing an act within the scope of his authority.
    
      “Fifth. That the injuries complained of were caused, absolutely and solely, by the carelessness, negligence and wrongful act of the defendant, its servant, agent or employee, and that this plaintiff did not contribute thereto by any negligence on his part.”
    Counsel for the plaintiff, in opening the case to the jury, said: “If the court please, and gentlemen of the jury, it is a proposition of law that the employer is held liable for the acts of his agent or employee, done in the discharge of his duty, even though the agent may be guilty of a failure to use good judgment, and though he may be eveii reckless in the discharge of his duty. The principle on which the law holds an employer liable being that he has the power of selection and removal and control over his agents, and if, by the acts' of his agent, a person is injured, it is right that the principal who has the control over and the selection of his agent should be liable where such a person has been injured. Now, we come, gentlemen, to what I regard as a very serious and pitiful case. This young boy, William Rhall, was in the habit of, once in a while, playing truant from school, and the law places the duty upon the board of education under such circumstances to see that such lads are kept in school, so that they, mayffie educated for the good of the State, foi' the good of us all, and the"law has placed in the hands:of the board of education of this city, as well as in the hands of authorities in all the. different governmental districts, of the .State, the' duty of seeing that this compulsory education is enforced, and that duty is intrusted hy law to the board of education exclusively, which has the full power of regulating this education and making the rules and by-laws for its enforcement. This duty is, of course, intrusted by the board to what is known, as attendance officers, who are within the control of the board absolutely, subject 'to its' direction, and who ■ are responsible to it and removable by it at pleasure.
    ' “ On' one day in June last this boy, while playing on the street, was seen by one- of these truant- or attendance officers* William' W. Lock, who started for the boy in order to arrest him, the law giving him authority to arrest such a boy without a waiñant. The boy naturally ran .and.the officer pursued him, pursued him into a house, down into a cellar, .and as the youngster leaped up the stairs of the cellar -this officer, standing on the. floor, put his hand through the railing and grasped the boy in the crotch. The boy begs piteously, but the officer continues to draw him down. ■ The boy falls down in agony, and, as we intend to show, is practically ruined for life.in the functions of that part of the body.
    “ Gentlemen of the jury, these are the facts we intend to prove, and aslc-for a verdict commensurate with the injuries, proving, of course* negligence, of this , officer who perpetrated these injuries while in -the discharge of his duties to the board of education, and'-wlio ■still holds that office in -that board. We ask for a verdict of $20,000.” '
    
      Samuel Guggenheimer, for the appellant.
    
      Theodore Connoly, for the respondent.
   McLaughlin, J.:

The statute referred to by counsel in his opening under which Lock, the attendance officer, was appointed, is the Compulsory Edu7 cation-Law. This act (Chap. 671, Laws of 1894, as amd. by chap. 606, Laws of 1896) provides^ that all children between eight and- sixteen years of age, in proper physical and mental condition to attend school, shall regularly attend upon instruction at a school in which, at least, the common school branches are taught, and that the school authorities of each city or school district shall appoint and may remove at pleasure one or more attendance officers of such city or district, and shall fix their compensation, and may prescribe their duties not inconsistent with the act, and may make rules and regulations for the performance thereof, and that the superintendent of schools of such city or school district shall supervise the enforcement of the act within such city or school district. The act also provides that the attendance officer appointed may arrest, without warrant, any child between eight and sixteen years of age found away from his home and who then is a truant from instruction.

The plaintiff predicates his right to recover on the ground that the rule of respondeat superior applies, and that the defendant having appointed Lock must be held responsible for his negligent acts. We are of the opinion that the rule sought to be invoked has no application to the facts presented, and that it does not apply to the-relations existing between the board of education and the attendance officer appointed under the statute referred to. That rule only applies when the employer has the power to select his servants, to discharge them if not competent or skillful or well behaved, to prescribe their duties and to direct and control them while in his employ. (Maxmilian v. Mayor, 62 N. Y. 163.) The defendant in appointing the attendance officer, Lock, did not do so voluntarily, but only in obedience to the positive command of the State as expressed in the statute, and after the appointment Lock’s duties were prescribed by the statute and not by the defendant. He was, therefore, not a servant of the defendant, but an officer of the State. The duties performed by him were solely for the State, in which the defendant had no private interest and from which it derived no special benefit whatever.

It is well settled that where a municipal corporation elects or appoints an officer in obedience to an act of the Legislature, as in this case, to perform a public service in which the corporation itself has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, such officer cannot be regarded as the servant or agent of the municipality for whose negligence or want of skill it can be held liable. (Maxmilian v. Mayor, 62 N. Y. 165; Donovan v. Board of Education, 85 id. 117; Hughes v. County of Monroe, 147 id. 49; Hill v. City of Boston, 122 Mass. 344; Reynolds v. Board of Education, 33 App. Div. 88.)

The case of Reynolds v. Board of Education (33 App. Div. 88) is directly in point and fenders a further discussion of the' question here jireseüted unnecessary. There the action was brought to recover damages for in juries sustained by a boy eleven' years' of age, alleged to have been caused by the negligence of an attendance officer appointed by the defendant under the same statute as the attendance officer in the case before us was appointed ; and Mr. Justice Adams, delivering the opinion, in which all the other members, of the court concurred, reached the conclusion, after- an exhaustive review of the authorities bearing on the subject, that the action could not be maintained against the board of education; that- an attendance officer is a creation of the statute; that the board,of education is bound -to make an appointment; that it has no private interest' in the duties performed by the officer and derives no special ■advantage from the same, and that his duties are essentially- and conclusively of a public character and performed solely for the public.

In -this view we fully concur. The judgment is right and should be affirmed, with- costs to the respondent.

Van Bbunt, P. J., Babbett, Rumsey and Ingbaham, JJ., concurred!

Judgment affirmed, with, costs.  