Wahrman v. Bd. of Educ. of New York

• Decision Date: 19 February 1907
• Citation: 187 N.Y. 331,80 N.E. 192
• Parties: WAHRMAN v. BOARD OF EDUCATION OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 331

80 N.E. 192

WAHRMAN

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

Feb. 19, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Alfred Wahrman, an infant, by guardian ad litem, against the board of education of the city of New York. From a judgment of the Appellate Division (97 N. Y. Supp. 1066) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

William B. Ellison, Corp. Counsel (James D. Bell, of counsel), for appellant.

Edmund F. Driggs, for respondent.

HAIGHT, J.

This action was brought to recover damages for a persons injury. The plaintiff was a pupil, 12 years of age, attending Public School No. 100 in West Third street, Coney Island, in the city of New York. On the 27th day of May, 1904, while occupying a seat assigned to him in the schoolroom, the ceiling of the room broke, and fell upon the top of his head, fracturing his skull and causing the injury for which this action was brought. Upon the trial there was evidence given tending to show that the schoolhouse and the ceiling were out of repair; that it had been examined by inspectors appointed by the defendant from time to time, who had observed the condition of the building and that the ceiling was cracked and liable to fall; and that the result of such inspection had been reported to the defendant. At the close of the plaintiff's case, and again at the close of the evidence, the defendant's counsel moved to dismiss the complaint upon the ground that the plaintiff had not shown at the time nor several months before the accident that there was any condition of the school building that constituted negligence of the board of education, or of any of its subordinates, or gave them any notice or idea that it was dangerous to have school there; that the board of education is not responsible for any of the acts of its subordinates, and that the doctrine of respondent superior does not apply to defendant in this case and that there is 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 were taken.

The case was submitted to the jury upon the charge that, if the jury 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 day of May, 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.’ No exception was taken to this charge. It, therefore, must be treated as the law of the case. It consequently follows that the only question presented for review arises under the defendant's motions for a dismissal of the complaint. It is quite true that the doctrine of respondeat superior does not apply to the board of education, and that it is not responsible for any of the acts of its subordinates.

In the case of Ham v. Mayor, etc., of N. Y., 70 N. Y. 459, it was held that the department of public instruction in the city of New York, although formerly constituting a part of the city government, is charged with the performance of duties relating and belonging to the administrative branch of the state...