Isereau v. Stone

• Citation: 207 Misc. 941
• Parties: Eva Isereau, as Administratrix of The Estate of Mary Dailey, Deceased, Plaintiff,<BR>v.<BR>Albert E. Stone, Individually and as Sheriff of Onondaga County, et al., Defendants.
• Decision Date: 12 March 1955
• Court: United States State Supreme Court (New York)

207 Misc. 941

Eva Isereau, as Administratrix of The Estate of Mary Dailey, Deceased, Plaintiff,

v.Albert E. Stone, Individually and as Sheriff of Onondaga County, et al., Defendants.

March 12, 1955.

Julian W. Edgcomb, County Attorney (Eli Gingold of counsel), for defendants.

Hilbert I. Greene for plaintiff.

HUDSON, J.

This is a motion by the defendants for an order dismissing the complaint on the ground that it appears upon the face thereof that it does not state facts sufficient to constitute a cause of action.

The action was instituted against Albert E. Stone, individually and as Sheriff of Onondaga County, and the County of Onondaga. Both defendants are represented by the County Attorney of Onondaga County.

Section 5 of article IX of the Constitution of the State of New York provides: "But the county shall never be made responsible for the acts of the sheriff."

It would seem clear under this provision of section 5 of article IX of the Constitution that the complaint does not state a good cause of action against the defendant County of Onondaga and as against such defendant, the complaint is dismissed.

As against the defendant Albert E. Stone, individually and as Sheriff of Onondaga County, a different question is presented.

This action is instituted to recover damages for the death of the plaintiff's intestate from a gunshot wound inflicted upon her by her husband. It is alleged in the complaint that about 3:00 P.M. on the 22d day of March, 1953, the defendants had been informed that the plaintiff's intestate's husband had just committed an assault with a deadly weapon upon her, had threatened her life, had left the premises promising to return and that a further assault and a possible murder were reasonably to be anticipated. The complaint further alleges that the defendants sent two deputy sheriffs to the scene in response to such notice and that such deputy sheriffs talked with the plaintiff's intestate. The complaint further alleges that a request was made of such deputy sheriffs for the aid and protection of the plaintiff's intestate and that such deputy sheriffs were informed that the plaintiff's intestate's husband was expected to return in a short time and that a further assault and possible murder was reasonably to be anticipated. The complaint further alleges that such deputy sheriffs commanded the plaintiff's intestate to aid in arresting and apprehending her husband and thereupon left the premises and abandoned plaintiff's intestate to protect herself and unreasonably and unjustifiably failed and neglected to protect her and otherwise carry out their duties to the plaintiff's intestate and further that they failed to properly act to prevent crime and apprehend those who had committed crimes and failed in their duty as conservators of the peace. The complaint further alleges that the plaintiff's intestate's husband did thereafter return, shoot and kill the plaintiff's intestate and that such death of the plaintiff's intestate was the result of the misfeasance, nonfeasance, neglect, omission and breach of duty of the defendants.

The defendants contend that the law is well established that a municipality is not liable for the failure to exercise a governmental function which includes police protection by the municipality; that the operation of a police department is a governmental function as distinguished from a proprietary function; that acts or omissions in connection with governmental functions do not give rise to liability on the part of a municipality. This contention is based upon the theory that police protection is not and never was intended to be for the benefit of an individual except as such individual was a member of the general public and that neglect in the performance of such duty by a municipality or its officers creates no liability to an individual. (Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N.Y. 845; Steitz v. City of Beacon, 295 N.Y. 51; Ferrier v. City of White Plains, 262 App. Div. 94.)

The defendants further urge that in two very recent decisions a municipality was held not to be liable under circumstances somewhat similar to those in the instant case, and that such decisions are controlling here. (Schuster v. City of New York, 207 Misc. 1102; Rocco v. City of New York, 282 App. Div. 1012.) In these cases the City of New York was held not liable for failure to prevent injury to people who had been threatened generally with bodily harm. There was no specific time and place fixed in the threats which were made and for this reason I believe there is a distinction between the facts in these cases and the present one. Here the facts could be such that an immediate assault might reasonably have been anticipated at the place where the deputy sheriffs were advised of the danger and where they were present. It cannot be said as a matter of law that they were free from any responsibility to the plaintiff's intestate if such circumstances existed.

It is urged by the plaintiff that there has been a tendency on the part of the courts in recent years to hold a municipality liable for the torts of its officials, agents or employees in those instances when it was reasonable to anticipate or foresee that the acts resulting in injury to an individual should have been anticipated or reasonably foreseen by the official, agent or employee of the municipality charged with responsibility in the matter. In support of this contention the plaintiff relies upon the following cases:

McCrink v. City of New York (296 N.Y. 99). In this case recovery was permitted against the City of New York for the death of the plaintiff's intestate caused when a police officer, who was drunk and off duty, killed the plaintiff's intestate with his service revolver. The court held that the failure of the police commissioner to discharge the officer, whose record for drunkenness was well known, could be found by the jury to constitute a failure to exercise reasonable care when such officer was required by the city charter to carry a revolver at all times, as such circumstances should have been known to be a source of danger to the general public.

Scolavino v. State of New York (297 N.Y. 460). This case involved an attack upon an inmate of a State institution by another inmate and recovery was allowed.

There is no question but that there has been a tendency in recent years on the part of the Legislature and the courts to recognize that the principles of justice and equity require the acknowledgment of a moral duty by the State and consequently by its governmental agencies of liability for the negligent acts of its agents and employees.

The Legislature by its addition of section 12-a of the Court of Claims Act (L. 1929, ch. 467) and by its enactment of section 8 of the Court of Claims Act (L. 1939, ch. 860) waived the State's immunity to such liability.

The Court of Appeals in 1941 recognized this principle in Bloom v. Jewish Bd. of Guardians (286 N.Y. 349). At page 353, Justice LEHMAN stated: "Immunity of the State and immunity of the agent of the State from liability for wrongful acts committed by an employee of the agent, are so closely related that it would be difficult to find in logic, or in assumed principles of justice or equity, justification for the destruction of the immunity of the State while the immunity of the agent remains intact. When the court nevertheless held that the statute was intended to destroy the immunity of the State from liability for the acts of employees of the agent of the State, it, at least, created substantial ground for argument in the future that the immunity of the agent vanished with the assumption of liability by the principal." The Court of Appeals followed the same rule in Bernardine v. City of New York (294 N.Y. 361), and McCrink v. City of New York (296 N.Y. 99). In Miller v. City of New York (266 App. Div. 565), the Appellate Division, First Department, following the decision in Bloom v. Jewish Bd. of Guardians (supra), held the City of New York responsible for the negligence of a deputy sheriff who was driving a prison van while acting as an employee of the city rather than of the Sheriff. This decision was affirmed in 292 New York 571.

The Fourth Department in Holmes v. County of Erie (266 App. Div. 220) following the decision in Bloom v. Jewish Bd. of Guardians (supra) held the County of Erie responsible for injuries to a prisoner confined in the county penitentiary. Judge McCURN, at page 222, stated: "In the present case we have the county, a civil division of the State, performing a governmental function. However, the immunity of the private institution performing services relating to penal correction and that of the county in performing similar services at the county penitentiary are both based entirely upon the fact that each is performing a governmental function delegated to it by the State, the delegation carrying along with it, as an adjunct thereto, the protective immunity of the sovereign State. For each the source of the immunity is the same, the purpose the same, and the function to be protected the same. Each is engaged in carrying out the State's function. The distinction between the two situations is not sufficiently fundamental to allow us to say that the reasoning applied in the Bloom case to the Jewish Board of Guardians does not apply with at least equal force and persuasion to Erie County in the operation of the penitentiary. If the immunity of the State is destroyed, as stated in Bloom v. Jewish Board of Guardians (supra), there is no basis for holding that the county, as a civil division of the State, is still immune. The sovereign State itself not being immune, there is no immunity to a civil division of the State. When the State waived immunity and assumed liability, the immunity of its civil division, the county, vanished also." This decision was affirmed at 291 New York 798. The law, therefore, would seem to be well established in this...