Donovan v. . McAlpin , 85 N.Y. 185 ( 1881 )

This action is brought to recover for the same injury for which the action was brought by the plaintiff against the Board of Education of the city of New York, just decided. The defendant Stagg was superintendent of school buildings, under the appointment of the board, and the other defendants were ward trustees of schools, in the ward where the school premises were located, in which the excavation was, into which the plaintiff fell.

The alleged negligence was the leaving of this excavation uncovered and unprotected. The general facts, and the provisions of the statutes defining the powers and duties of the board of education, and of the ward trustees, in respect to the care and custody of school buildings and premises, are stated in the opinion in the former case.

The defendant Stagg was appointed superintendent of school buildings, pursuant to subdivision two of section two, chapter 101 of the Laws of 1854, which authorizes the board of education to appoint a superintendent of school buildings, and to regulate and determine his powers and duties, except as otherwise provided by the act. By the rules of the board it was made his duty to examine all buildings under the control of the board, in reference to their safety and general condition as to repairs, and to superintend all work done in connection therewith. It was not claimed on the trial that there was any personal negligence on the part of any of the defendants, or that they had any knowledge that the workmen who were engaged in repairing the building, had removed the grating which covered the excavation; but it was assumed by both parties that there was no personal negligence on the part of the defendants, and that the actual negligence was that of the workmen, employed by the ward trustees, to make the repairs.

Upon this state of facts we think the complaint was properly dismissed. The trustees, in directing the repairs to be made, and in employing workmen for that purpose, were acting within the scope of their authority. They were charged with the safe-keeping of the school property in their ward, and authorized to make needful repairs within certain limits. The employment of workmen for this purpose, was necessary, and if they employed competent men, and exercised reasonable supervision over the work, their whole duty as public officers was discharged. They were acting as gratuitous agents of the public, and it could not be expected that they should be personally present at all times during the progress of the work, to supervise the conduct of the workmen. It was said by BEST, C.J., in Hall v. Smith (2 Bing. 156), that no action can be maintained against a man acting gratuitously for the public, for the consequences of any act which he was authorized to do, and which, so far as he is concerned, is done with care and attention, and that such a person is not answerable for the negligent execution of an order properly given; and it was said by NELSON, C.J., in Bailey v. The Mayor (3 Hill, 538), that if a public officer, authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ.

In this case it must be assumed, that the defendants were not chargeable with personal negligence, and they omitted no duty imposed upon them by law. It would be equally opposed to justice, and sound public policy, to make them answerable for the negligence of the workmen. They were acting as public officers, and in respect to the acts of persons necessarily employed by them, the doctrine of respondeat superior has no application. (Story on Agency, § 321.)

The judgment should be affirmed.

All concur.

Judgment affirmed.