Isereau v. Stone
| Citation | 160 N.Y.S.2d 336,3 A.D.2d 243 |
| Parties | Eva ISEREAU, Administratrix of the Goods, Chattels and Credits of Mary F. Dailey, Deceased, Plaintiff-Appellant-Respondent, v. Albert E. STONE, Individually and as Sheriff of Onondaga County, Defendant-Appellant, and The County of Onondaga, Defendant-Respondent. |
| Decision Date | 13 March 1957 |
| Court | New York Supreme Court Appellate Division |
Hilbert I. Greene, Brown, Mangin & Greene, Syracuse, for plaintiff-appellant-respondent.
Julian W. Edgcomb, County Attorney, Syracuse (Eli Gingold, Syracuse, of counsel), for defendant-appellant and defendant-respondent.
Before McCURN, P. J., and VAUGHAN, KIMBALL, WILLIAMS and BASTOW, JJ.
This appeal brings up for review an order made as the result of the motion of both defendants to dismiss the complaint for legal insufficiency. The pleading was dismissed as to the defendant, County of Onondaga, and plaintiff appeals from that determination. The codefendant, the Sheriff of Onondaga County, also sued as an individual, appeals from so much of the order as denied his motion to dismiss.
The action is one to recover damages for the death of plaintiff's intestate, who it is alleged in the complaint was shot and killed by her husband, George Dailey, on March 22, 1953 in or near the hamlet of Warners. In summary, it is alleged that prior to the shooting the defendants were given 'due notice' through their 'sheriff's deputies, agents, servants and employees' that Dailey had assaulted his wife with a deadly weapon, had threatened her life and had departed but would return and a further assault and possible murder were reasonably to be anticipated. Thereafter, the defendants sent two deputy sheriffs to whom these facts were related and a request made for the protection of Mrs. Dailey. The deputies commanded Mrs. Dailey to aid in arresting her husband and then left the premises. There follow allegations that the deputies failed and refused to protect Mrs. Dailey, failed to carry out their duty to her and failed to prevent crime generally and in particular to arrest and apprehend Dailey. Thereafter the latter returned and the killing ensued.
It thus appears that if the pleading is found to allege a cause of action against either or both of these defendants it must be based on the acts of omission or commission of the deputy sheriffs. There is no allegation that the sheriff in his official capacity or as an individual took any part in these happenings or had any notice of them. Neither is there any allegation that liability should attach to the defendant county except for the acts of the deputies.
Thus, if the pleading is to be sustained it must be determined that one or both of the defendants are liable for the acts of these deputy sheriffs, who it may fairly be inferred from the complaint, were performing duties as criminal deputies of the sheriff as distinguished from civil deputies. In other words, in passing upon this question the search is to ascertain whether a deputy sheriff is discharging civil or criminal duties of the office. Here there can be no dispute that it was the latter.
An exploration of the history, both ancient and modern, of the office of sheriff and the clear line of demarcation between his civil and criminal duties might be of interest but it would serve no useful purpose. Our Court of Appeals has restated the applicable law in a series of decisions commencing with Flaherty v. Milliken, 193 N.Y. 564, 86 N.E. 558. There a question arose as to the civil service status of certain deputies in the office of the sheriff of Kings County. It was held that a sheriff is liable for the negligence and misconduct of his subordinates in the execution of civil process for in that respect they are in the service of the sheriff and not in the service of the county and the fact that the office of sheriff is a salaried one does not change the nature of the relationship. However, the relationship of the sheriff to his appointees in the discharge of the duties of the office relating to criminal matters differs from that in the discharge of civil duties. The court said that the relation between sheriff and deputy was not that of principal and agent, nor would the rule of respondeat superior apply. In criminal matters deputies were considered in the service of the public and not of the sheriff personally.
It would seem that this opinion in substance spells out the nonliability of the sheriff if deputies are in the service of the...
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