Friedman v. Board of Education of City of New York

• Decision Date: 11 July 1933
• Citation: Friedman v. Board of Education of City of New York, 262 N.Y. 364 (N.Y. 1933)
• Court: New York Court of Appeals Court of Appeals
• Parties: Friedman v. Board of Education of City of New York

262 N.Y. 364

186 N.E. 865

FRIEDMAN

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

July 11, 1933.

Action by Max Friedman, as administrator of the goods, chattels and credits of Milton Friedman, deceased, against the Board of Education of the City of New York. From a judgment of the Appellate Division (-- App. Div. --, 262 N. Y. S. 934) affirming a judgment of the Trial Term entered upon the verdict of a jury in favor of plaintiff, plaintiff appeals.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, First department.

Arthur J. W. Hilly, Corp. Counsel, of New York City (J. Joseph Lilly, Henry J. Shields, and Edward A. Gobel, all of New York City, of counsel), for appellant.

Edwin C. Morsch, Edwin B. Goddin, and Arthur L. Rieder, all of Brooklyn, for respondent.

LEHMAN, Judge.

Plaintiff's intestate, a boy in his fifteenth year, was crushed while riding on the platfrom of an ash hoist or elevator in a schoolhouse in the city of New York. The question presented upon this appeal is whether the accident occurred through the negligence of the board of education in the performance of its statutory duties.

The accident occurred in the evening when the building was closed. The board of education employed or appointed a ‘custodian engineer’ to keep the building warm and clean. He was required to keep up the furnace fires and to remove the ashes. The ash hoist was in his charge. In the performance of his duties ‘the custodian engineer’ had the right to employ assistants and helpers. A man was so employed by the ‘custodian engineer,’ and was required to reside in the building. After school hours, when the building was closed, he was the sole custodian of the building, and, as such, in charge of the building.

Plaintiff's intestate was not a pupil of the school. He came there, after the building was closed, at the invitation of the hired custodian. While playing or perhaps while assisting that man in his work of removing ash cans he sustained the injuries resulting in his death. It is said that the accident would not have occurred if the ash hoist had been equipped with a device generally used for the protection of those operating similar ash hoists.

Maintenance of the school buildings is a duty imposed by law upon the board of education. For injuries occasioned by negligence in the performance of its duties, the board of education is liable. Though it must perform some of these duties through its agents, it cannot escape liability for negligence upon the plea that the doctrine of respondeat superior does not apply to it. A corporate responsibility is placed by law upon the board for dereliction of duty imposed upon the board, even though that duty be a continuing one, and in its performance requires the intervention of agents or employees. Lessin v. Board of Education, 247 N. Y. 503, 161 N. E. 160. If plaintiff's intestate was lawfully upon the ash hoist and his death was due to negligence in failing to provide the ash hoist with proper equipment, then the plaintiff has established a cause of action.

No witness saw the accident. How it occurred rests upon doubtful inference. Perhaps it occurred...