261 A.D. 428 | N.Y. App. Div. | 1941
Lead Opinion
The question now before us is whether section 569-a of the Education Law (Laws of 1937, chap. 887) gives to the plaintiff or one similarly situated, a cause of action against the board of education or trustees of a school district, or whether such statute is intended to be a means of indemnification from personal financial loss of the negligent actor mentioned in section 569-a of the Education Law. Such section of the Education Law is as follows: “ Notwithstanding any inconsistent provision of law, general, special or local, or the limitation contained in the provisions of any
Paragraphs Eleventh, Twelfth and Thirteenth stated in each second cause of action, which cause of action is attacked, repeats in so far as paragraph Eleventh is concerned, the legal existence of the defendant board, the employment of the individual defendant, the attendance of the infant-plaintiff as a student and injury to him as set forth in the first cause of action; paragraphs Twelfth and Thirteenth of such second cause of action as contained in the complaints are quoted as follows:
“ Twelfth. Upon information and belief that at .the time of the said injury to the plaintiff as aforesaid, the said defendant Maurice M. Abbott, was acting in the discharge of his duties as a teacher within the scope of his employment and /or under the direction of
“ Thirteenth. That by virtue of the laws of the State of New York in such case made and provided, the defendant Board of Education of the School District of the City of Niagara Falls, New York, is hable to indemnify and save harmless the defendant Maurice M. Abbott of and from any liability arising by reason of the negligent acts of the said Maurice M. Abbott as aforesaid.”
In denying the motion of the defendant board for the dismissal of such second causes of action the court below, using as an authority the construction of' section 50-d of the General Municipal Law given by the Court of Appeals in Derlicka v. Leo (281 N. Y. 266), held that the adoption of section 569-a of the Education Law created a new remedy in favor of the plaintiff against the defendant board, and, therefore, the court below left the complaint intact. The defendant-appellant on this review contends that the portion of the Education Law under discussion by its language and its purport can be regarded only as a statute of indemnification for the teacher or other negligent actor covered by such statute, and that such statute does not create a new cause of action in favor of the plaintiffs herein or one similarly situated.
In examining the statute under review in an endeavor to ascertain if possible the legislative intent, search has been made of the records of the Legislature and as to the action of the Governor in approving the statute to see if such records and memorandum of approval give any indication as to what the actual intent of the Legislature was in enacting this statute. Such search shows that at no time from the introduction of the bill to the time of its approval as a statute was there any statement, discussion or debate as to its purport. The only records that have been found are: (1) The statement in the New York Legislative Record and Index which, in reference to chapter 887 of the Laws of 1937, describes the proposed new section of the Education Law as “ requiring education board and trustees * * * to protect teachers * * * against claims for personal injuries * * * and to arrange for insurance ” therefor; and (2) the heading of the statute as enacted which heading is as follows: “ An act to amend the Education Law, in relation to the liability of a board of education, trustee or trustees'.”
The language used in section 569-a of the Education Law is entirely different from that used by the Legislature in enacting sections 50-a to 50-d of article 4 of the General Municipal Law. Each of such sections of the General Municipal Law specifically provides that liability is assumed by the municipality. (Derlicka v. Leo, 281 N. Y. 266; Kosiba v. City of Syracuse, 260 App. Div.
We are led to the conclusion that the Legislature intended to and did use language that put into effect protection of the teacher and other employee actor, and not language intended to protect and give a cause of action to the injured person. Section 569-a of the Education Law is clearly a statute for the benefit of the employee and the pleading of the same and the proof of it on trial may prejudice the defendants herein. The second cause of action in each complaint and the allegations thereof should be stricken from the complaints. The order from which appeal is taken should be reversed on the law, with ten dollars costs and disbursements, and the motion made below should be granted, without costs.
All concur, except Dowling, J., who dissents and votes for affirmance in a memorandum. Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.
Dissenting Opinion
(dissenting). I cannot see any essential distinction between the provisions of section 50-d of article 4 of the General Municipal Law and section 569-a of article 20 of the Education Law so far as giving a new remedy against the municipality or board of education for injuries suffered by an innocent third party is concerned. Under section 50-d a new remedy has been afforded. (Derlicka v. Leo, 281 N. Y. 266, 268.) Distinction is sought to be made on the theory that the municipality under section 50-d has assumed liability, while under section 569-a the board of education is merely required “ to save harmless and protect ” the teacher in case he has been compelled to pay anything to a pupil who has been injured through his negligence. I think section 569-a gives to the pupil, who has been injured by the negligence of bis teacher, a new remedy against the board of education to recover for the damages suffered regardless of the teacher’s ability to pay. The obligation of the municipality under section 50-d is merely “ to
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs.