57 N.Y.S. 977 | N.Y. App. Div. | 1899
The statute referred to by counsel in his opening under which Lock, the attendance officer, was appointed, is the Compulsory Edu7 cation-Law. This act (Chap. 671, Laws of 1894, as amd. by chap. 606, Laws of 1896) provides^ that all children between eight and- six
The plaintiff predicates his right to recover on the ground that the rule of respondeat superior applies, and that the defendant having appointed Lock must be held responsible for his negligent acts. We are of the opinion that the rule sought to be invoked has no application to the facts presented, and that it does not apply to the-relations existing between the board of education and the attendance officer appointed under the statute referred to. That rule only applies when the employer has the power to select his servants, to discharge them if not competent or skillful or well behaved, to prescribe their duties and to direct and control them while in his employ. (Maxmilian v. Mayor, 62 N. Y. 163.) The defendant in appointing the attendance officer, Lock, did not do so voluntarily, but only in obedience to the positive command of the State as expressed in the statute, and after the appointment Lock’s duties were prescribed by the statute and not by the defendant. He was, therefore, not a servant of the defendant, but an officer of the State. The duties performed by him were solely for the State, in which the defendant had no private interest and from which it derived no special benefit whatever.
It is well settled that where a municipal corporation elects or appoints an officer in obedience to an act of the Legislature, as in this case, to perform a public service in which the corporation itself has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, such officer cannot be regarded as the servant or agent of the municipality for whose negligence or
The case of Reynolds v. Board of Education (33 App. Div. 88) is directly in point and fenders a further discussion of the' question here jireseüted unnecessary. There the action was brought to recover damages for in juries sustained by a boy eleven' years' of age, alleged to have been caused by the negligence of an attendance officer appointed by the defendant under the same statute as the attendance officer in the case before us was appointed ; and Mr. Justice Adams, delivering the opinion, in which all the other members, of the court concurred, reached the conclusion, after- an exhaustive review of the authorities bearing on the subject, that the action could not be maintained against the board of education; that- an attendance officer is a creation of the statute; that the board,of education is bound -to make an appointment; that it has no private interest' in the duties performed by the officer and derives no special ■advantage from the same, and that his duties are essentially- and conclusively of a public character and performed solely for the public.
In -this view we fully concur. The judgment is right and should be affirmed, with- costs to the respondent.
Van Bbunt, P. J., Babbett, Rumsey and Ingbaham, JJ., concurred!
Judgment affirmed, with, costs.
