
    Alfred Wahrman, by Adolphus Rothmiller, His Guardian ad Litem, Respondent, v. The City of New York, Defendant, Impleaded with The Board of Education of the City of New York, Appellant.
    Second Department,
    March 9, 1906.
    Negligence—when the board of education of the city of New York is . liable for injuries received by a pupil by fall of ceiling in school building — said board liable for negligence — said board liable as master for acts of its subordinates.
    As the charter of the city of Greater New York makes the board of education of said city a separate corporation, and vests said board with the title to real estate used for school purposes, with power to alter, repair and inspect said school buildings through subordinates appointed and controlled by it, said board is charged .with the duty of repairing said buildings and keeping them in a safe condition, and is liable for its negligence in failing to do so. Said board also occupies the relation of master and servant with its subordinates appointed by it and under its control and direction.
    Hence, when a pupil has been injured by the fall of a ceiling in a school building in said city, and it is shown that an inspector of the defendant had for some years noted the defective condition of the building, the sagging of the ceilings, etc., and had reported the defects several times to said board, the board is liable for the injuries received by said pupil, if the plaintiff on his part was free from negligence contributing to the injury.
    Appeal by the defendant, The Board of Education of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of March, 1905, upon the verdict of a jury for $4,000, and also from two orders entered in said clerk’s office on the 9th day of March, 1905, respectively, denying the said defendant’s motion for a new trial made upon the minutes, and granting. the.' plaintiff’s motion for an extra allowance:
    .James B. Bell [ William Hughes and John J. Belamy with him on the brief], for the appellant.
    Edmund Fletcher Driggs, for the respondent.
   Rich, J.:

. ' The plaintiff, an infant twelve years of age, has- recovered a judgment for a personal injury sustained on May 27, 1904, while attending a public school in the city.of Kew York, caused by plaster of the ceiling of the schoolroom falling upon him. It is not disputed that he was a scholar attending the school; that the plaster fell upon him, inflicting a very severe and permanent injury.,, and that he was without fault. ,

It is contended by the appellant that, it cannot be'held liable for the' negligence of its servants dr agents in allowing scholars, to occupy an unsafe school building, and the condition that occasioned the accident was not such an apparent defect as to constitute notice -of danger, sufficient to charge' the defendant with negligence.

At the close of plaintiff’s case and again at the close of the evidence, the appellant moved to dismiss upon the' grounds, first, ' that the plaintiff had not shown that at the time of the accident nor for several months before it, there was any condition of the school building that constituted negligence on the. part of the board of education, or any of its subordinates,,or thát gave, them any notice or idea that it, was dangerous to have scholars there, and, second, that the appellant was not responsible for any of the acts of its subordinates^ and that the doctrine of respondeat superior does not apply to, the appellant; that there ‘ was no evidence to connect the board of education with any obligation to do anything to this building to put", it in condition, and also that in no case of this kind is the board of education ■‘responsible for the tortious acts of any of its officers or . agents. The motions were denied. and ¡ exceptions taken. ■• .

The learned, trial justice charged the jury: “ If you find that the board of education was guilty of negligence in permitting the occupation of this room by the pupils of this school on the 27th of Hay, 1904, by reason of the condition of the ceiling, and what they knew or ought to have known as to its condition, then the plaintiff is entitled to recover. The negligence which is the basis of the right to recover, if any, is the negligence in permitting it to be occupied for the purposes of a schoolroom. Their own inspector says that he had inspected it two days before, and every week prior to that, and he admitted that the ceiling would not be expected to fall unless it showed evident indications of being about to fall for a considerable period before the thing actually occurred. In view of all the evidence in the case, you must determine whether the board of education, remembering that it acts in this matter by its servants,. knew or ought to have known of the probability of this accident, and to have closed the'-door of that room to the pupils on that day. If you find that they were in that respect negligent, then they are ■ liable.”

Ho requests for additional instructions were made; to so much of the charge as instructed the jury “that if the board of education is liable through the acts of its servants plaintiff may recover ” the appellant excepted.

These exceptions present the only questions for our consideration;

There is sufficient evidence in the case warranting its submission to the jury. It appeared from the evidence that in 1901 an inspector of appellant had ascertained that the building in which this accident occurred 'had sagged in the center, causing the ceilings to sag and the roof to expand; the floors had sagged and the ceilings, under the floors; he reported this condition to the defendant. The same inspector inspected the building again in 1903 and found the ceilings and side walls were .cracked ; the ceilings sagged the same as in 1901; the longitudinal girders supporting a portion of the beams were deflected and twisted, causing the sagging of the partitions and cracking of the plaster of the walls and ceilings, and the building was apparently settling all the time. He testified that these conditions would cause the plaster of the ceilings at some time to fall. The walls supporting the.roof had been forced outward so as to entirely break the brick bond at the upper line of the floqr beams, and the rafters liad spread so as to break the bond of the brick work on an entire line. These conditions he also reported to the defendant. The principal .of the school had frequently, during the year 1903, made reports to" the appellant in reference to the condition of the building. In December of. that year a portion of the plaster in the same room in which plaintiff was injured had . fallen, and that fact he had reported to the appellant. He testifies that he had made special efforts ever since he had been there to better the condition -of the building, and had deported' several falls of plaster from ceilings which had not resulted in injury to pupils.; finally, at his particular request, as he testifies, “to majte the Whole, building safe,”- a. contract was made for repairs and work was commenced late in the fall of 1903, and had not been completed at the time of the. accident. An inspector of repairs was present every day in charge of the work, and the work ■ was- in progress when the plaintiff Was injured. An inspector named Lord had inspected the building in the- early part of February, T90Í, took note of all the bad features, and .found that there were several spots in the ceilings not in good condition, and he reported these to the superintendent of school buildings. " , ,

An inspector of. repairs of school buildings is. not .named in the charter of the city of Hew York. He was, however, undoubtedly employed or appointed and his duties specified by the 'appellant under the provisions of the charter to which attention will be directed later. • ■

■ It was a question for the jury to determine whether the appellant knew or ought to have known that the., room in this school building was unsafe and its occupancy dangerous by reason of the condition of its ceiling; whether a careful and proper inspection and examination ■ by its inspectors would have given it this knówledge, and, if it Would, whether they were, negligent in permitting its occupancy by children during the time.repairs .were in progress, and' the- question was properly submitted to them by the trial justice, providing,' of course,, that the appellant could be held l-iable for its negligence of the negligence of its servants and employees to whom it had 'trusted the inspection and ^supervision of its schoolhouses.. . ;

Did the appellant owe plaintiff any duty in respect to the- condition of repair of this schoolhouse Í Section 1055 of the Greater-New York charter (Laws of 1901, chap. 466) provides that the title to all property, real and personal, .owned or acquired for schoól or educational purposes (except the State Normal School at Jamaica), as well as the title to all property purchased for school or educational purposes, whether derived from the issue of bonds or raised by taxation, shall be vested in the city of New York, but shall be under the care and control of the board of education for the purposes of public education, recreation and other public uses in said city, and suits in relation to such property must be brought in the name of the board.

By section 1060 the hoard of education is required to administer all moneys appropriated or available for educational purposes in said city. ,

Section 1061'vests in the board the management and control of the public schools and of the public school system of the city subject only to the general statutes of the State relating to public schools and public school instruction and to the provisions of the charter.

By section 1062 the board is given, for the purposes of the charter, the powers and privileges of a corporation.

By section 1067 the board is given power to appoint and fix and regulate within the proper appropriation the salaries and compensation of a number of officers, including the power to appoint a “superintendent of school buildings,”- who is required to be an architect of experience, and it may remove such officers at any time for cause.

Section 1068 gives such board power to enact by-laws, rules and regulations for the proper execution of all duties devolved upon it, its members and committees and upon the several local school boards; for the transaction of all business'; “for defining the duties of -x- * * yie superintendent of school buildings” and its other subordinates.

Section 1071 requires .the board to make provision for the organization in the various boroughs of such branches as they may deem necessary in the bureau of the superintendent of school, buildings, and to make such provisions by its by-laws “as will secure prompt and, efficient service * * * for the alteration and repair of ■ existing buildings, * * * and for the execution and carrying into effect of all matters and things, authority for ■which shall ham been granted by the boa/rd.” The, section then provides : “ Subject to such by-laws, the superintendent of .school buildings shall be the executive officer of the board in respect to all-matters relating to the" bureau of buildings, or in respect to which bn is charged with duties' under the provisions of this act. He shall advertise forbids for the erection, alteration or pep air of any building to be used for educational purposes in The Gity of New York which has been authorized by the board of education.”

Section 1073 authorizes the superintendent of school buildings to appoint a deputy, for each of the boroughs in the city, and,'“ with the authority of the board of education, he may empower a deputy superintendent in his place and stead to execute all the duties of superintendent and such other duties as the boom'd of education may, by regulation, prescribe.” The section then provides : “All plans for new school buildings, for additions'to school buildings, and for structural changes in old buildings, shall be passed upon and must be' approved' by the superintendent of school buildings, who shall submit such plans to the board, of ■ education, whose action thereon shall be final.”

Section 1078 requires the city superintendent of schools to visit the ^schools as often as he can consistently with his other .duties, and inquire into several matters, among which is “ the condition of. the school-houses,” which he is required to report to the board. The same duty, under the supervision and direction of the city superintendent,' is devolved Upon the district superintendents by section 1080. They are required by that section to report the results of their inquiry to the city superintendent, who is by that section directed to transmit-such parts of said reports as he may consider necessary or proper to the board of education and to the local school boards of the districts for which the same are made. Provision. is made by section 1087 for the' division of the city into local school board 'districts by the board of education and for the appointment by the presidents of the respective' boroughs, the designation by the president of the board of. education and the assignment by the city superintendent of schools, of local school boards, among whose ■ duties, as defined by section 1088, "is that of visiting at least'once in all the sebeéis pa, their distort a®4 jnggeet the §§m§ respect to “ the cleanliness, safety, warming, ventilation and comfort of school premises,” and they are required by, section 1088 to call the attention of the board of education, without delay, to every matter requiring official action. * * "* They shall also recommend * * such repairs or alterations of school buildings as they deem necessary or desirable.”

From these provisions it is apparent that the appellant has the possession and absolute control and management of all school buildings in the city of New York and is charged with the duty of repairing and keeping them in proper repair and safe condition. It appoints, employs and prescribes the duties of all subordinates by whom this work and supervision-is to be done and exercised, establishes and pays their 'compensation and is vested with the power of removal, which it may at any time exercise for cause. They are under the sole control of the appellant and accountable to it for the manner in which their duties are discharged. Charged with this duty and possessed of these powers,.the relation of master and servant exists between the appellant and such of its subordinates. ■ It is the settled law of this State that in reference to its system of public education the municipal agencies of the State act for the sovereign and are not accountable in damages for the negligent manner in which they discharge their governmental duties or for the manner in which they carry on their work, unless other duties are also violated, but the plaintiff’s case does not rest upon the assumed governmental obligation to benefit the public by education but upon the local and ministerial duty resting upon the appellant and all other persons and corporations who possess’ and manage property upon which buildings are erected and maintained, to keep them in such reasonably safe condition that persons exercising care will not be injured while in them whether by necessity or invitation’.

The cases cited by the learned counsel for the appellant establish the well-known proposition that the city of New York is not liable for the negligence of the board of education, its officers or employees, in their management and care of school buildings, but they do not sustain’the contention that this appellant'is not liable.

In Donovan v. Board of Education of City of N. Y. (85 N. Y. 117) it was held that the defendant was not liable because the statutes then in force committed the care and safekeeping of school premises to ward trustees to whom, was also given the power to appoint janitors and make repairs. The repairs being made at the time of the accident were ordered by the ward trustees who employed the work-' men and had appointed the janitor of the building. The negligence alleged was that of the janitor or masons employed in doing the Work. ■ The. defendant neither employed nor appointed them or had power to control or discharge them. They were public officers, with- powers prescribed by the statutes which they were then exercising; they were not the agents, servants or employees of the defendant, and the. court held that in making repairs, employing workmen and appointing janitors the ward trustees acted as independent public . officers; that the relation of master and servant ..did not exist between them and the board of education and for their acts or negligence the board was not liable.

In Brown v. City of New York (32 Misc. Rep. 571) the court declared the general rule that , the city.is not liable for the negligence; of its board of education created by statute and thereby made solely responsible for the care and Control of school buildings, which law was recognized by the trial court in this action and the complaint accotdingly dismissed as to the defendant - city. The same distinction exists in Ham v. Mayor (70 N. Y. 459). ' In. neither of these cases! is there any intimation that, upon the facts established in the ease at bar, the board of education would not have been liable. It possessed and absolutely controlled the school building in which the injury Was received; it was charged with the duty of maintaining and keeping it in a reasonably safe and suitable condition and .free from danger to those lawfully in it, and for a failure to dis-. charge this duty, or negligence in its -performance resulting in an injury to a pupil attending school therein, ■ free from negligence himself, it is liable. (Galvin v. Mayor, etc., of New York, 112 N. Y. 223, 226; Vincent v. City of Brooklyn, 31 Hun, 122; Briegel v. Philadelphia, 135 Penn. St. 451; Carrington v. City of St. Louis, 89 Mo. 208.)

. The judgment and order must be affirmed, with costs. ''

Hirschberg, P. J., and Woodward, J., concurred ; Jekks and Miller, JJ., dissented,

Judgment and order affirmed, with costs,  