McCarthy v. City of Saratoga Springs

269 A.D. 469, 56 N.Y.S.2d 600

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1945
• Status: Published

Opinions

Hill, P. J.

The plaintiff appeals from an order which dismissed his complaint. It was pleaded that a police officer in the employ of the defendant City, and while acting as such willfully assaulted plaintiff and inflicted substantial injury. The dismissal was upon the theory that the police officer, although employed by the defendant, was engaged in performing a governmental function, and that the City was hot responsible for his acts in that capacity. The Special Term followed the authorities which preceded Bloom v. Jewish Board of Guardians (286 N. Y. 349).

The State waived its immunity from liability for the acts of its employees while engaged in governmental functions by section 12-a of the former Court of Claims Act (now § 8), and assumed responsibility therefor. (Jackson v. State of New York, 261 N. Y. 134; Paige v. State of New York, 269 N. Y. 352.)

In the earlier decisions, the immunity from liability of civil divisions within the State for the acts of officials and employees while performing governmental functions existed because of the historical immunity of the State. A city or a county performing governmental functions does so under delegated powers from the State, and acts under the same immunity, if any, enjoyed by the State. The immunity of a city derived from the State’s immunity ceased to exist after the enactment of the Court of Claims section (supra). (Holmes v. County of Erie, 266 App. Div. 220, affd 291 N. Y. 798.) A quasi-private corporation exercising governmental functions is not immune from liability since the waiver by the State of a like immunity. (Bloom v. Jewish Board of Guardians, supra.)

The order should be reversed.