Opinion
May Term, 1899.
Samuel Guggenheimer, for the appellant.
Theodore Connoly, for the respondent.
The statute referred to by counsel in his opening under which Lock, the attendance officer, was appointed, is the Compulsory Education Law. This act (Chap. 671, Laws of 1894, as amd. by chap. 606, Laws of 1896) provides that all children between eight and sixteen years of age, in proper physical and mental condition to attend school, shall regularly attend upon instruction at a school in which, at least, the common school branches are taught, and that the school authorities of each city or school district shall appoint and may remove at pleasure one or more attendance officers of such city or district, and shall fix their compensation, and may prescribe their duties not inconsistent with the act, and may make rules and regulations for the performance thereof, and that the superintendent of schools of such city or school district shall supervise the enforcement of the act within such city or school district. The act also provides that the attendance officer appointed may arrest, without warrant, any child between eight and sixteen years of age found away from his home and who then is a truant from instruction.
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 want of skill it can be held liable. ( Maxmilian v. Mayor, 62 N.Y. 165; Donovan v. Board of Education, 85 id. 117; Hughes v. County of Monroe, 147 id. 49; Hill v. City of Boston, 122 Mass. 344; Reynolds v. Board of Education, 33 App. Div. 88. )
The case of Reynolds v. Board of Education ( 33 App. Div. 88) is directly in point and renders a further discussion of the question here presented unnecessary. There the action was brought to recover damages for injuries 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 BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Judgment affirmed, with costs.