Willard Bartlett, J.
The city of Rochester has been held liable in this action for the alleged negligence of the persons having charge of the condition and operation of an elevator in a police station building in that city. The plaintiff was injured by falling to the bottom of the elevator well, through an open door in the elevator shaft. He was a journeyman sheet metal worker in the service of a firm of contractors who were employed to repair the roof of the police station. He had been working upon the roof on the day before the accident and had been in the elevator two or three times on that day, when the elevator was operated by James A. Smith, who is described as an assistant engineer in the employ of the city. On the morning of the accident, which occurred on June 28, 1904, the plaintiff arrived at the police station, to go to work on the roof, at a few minutes before eight o’clock. As he entered the front doors of the building he met Smith, whom he recognized as the man who had been running the elevator vdien he went up and down. lie testifies that Smith was coming from the elevator, the door to the elevator being open. The plaintiff and a fellow-workman, evidently acting under the impression that the elevator was in a position to be entered with safety through the open door, proceeded toward the door; the plaintiff stepped through, and in consequence of the elevator having meantime been moved upward and away from the door by a police telegraph operator, the plaintiff fell into the shaft and down to the bottom, a distance of ten or twelve feet, sustaining the injuries of which he complains in this suit.
Smith contradicts the plaintiff, so far as the position of the door is concerned, saying first that it was shut but not locked, and then that it was partly open, and that he saw the plaintiff push the door back; but the jury were at liberty to accept the testimony of the plaintiff on this point as in accordance with the fact. Smith’s testimony, however, shows that the plaintiff was justified, when he met Smith, in inferring that lie had just come down in the elevator and had left the door in the position in which the plaintiff actually found it, whatever that may have been ; for Smith testifies that he had been on the elevator prior to meeting the plaintiff; that he left it, he should judge, with the door half way open ; that when he met the plaintiff and his companion he supposed that they wanted to go up in the elevator; and that he himself thought the elevator was still there, and had not noticed that it had been removed.
Under these circumstances the trial court and the Appellate Division were not only justified in holding that the alleged contributory negligence was a question for the jury, but they were required so to hold by authority very precisely applicable to the facts of the case at bar.
(Tousey
v.
Roberts,
114 N. Y. 312, 316.)
The more serious question involved in this appeal is presented by the proposition urged upon us in behalf of the appellant, that in no event can the city of Rochester be held liable for any alleged neglect on the part of an employee in the police department for operating in any manner an elevator in the police building. The argument is that the defendant, although a municipal corporation, was engaged solelj in the discharge of public governmental functions as distinguished from municipal functions, in the maintenance, management and repair of the police station, and, therefore, under the doctrine of
Maxmilian
v.
Mayor, etc., of N. Y.
(62 N. Y. 160) and similar cases, is not responsible for the acts or omissions of those engaged in applying the building to such public purposes of government. This was evidently the view entertained by the' learned justice who dissented in the Appellate Division. He
wrote no opinion, but simply placed his dissent upon the authority of
Snider
v.
St. Paul
(51 Minn. 466) where the Supreme Court of Minnesota held, in reference to an elevator accident in the St. Paul city hall, that the duty of providing and maintaining a city hall was a public and governmental use and, therefore, the city was not responsible for the negligence of its officers, agents or servants in the management of such building.
The broad general doctrine of the
Maxmilian
case, which is certainly not now open to question in the courts of this state, is that
“
two kinds of duties are imposed on municipal corporations, the one governmental and a branch of the general administration of the state, the other
quasi
private or corporate ; ” and “ that in the exercise of the latter duties the municipality is liable for the acts of its officers and agents, while in the former it is not.” (Cullen, J., in
Lefrois
v.
County of Monroe,
162 N. Y. 563, 567.) The question which confronts us, on the branch of this appeal now under consideration, is whether the duty exercised by the city of Rochester, under the general statutes relating to cities of the second class, of maintaining and caring for a ¡lolice station, is a governmental duty appertaining to the general administration of the state or a duty imposed and undertaken for the benefit of the municipality as a corporate body. If it falls within the first of these categories, the present action cannot be maintained.
To my mind, it seems perfectly clear that if there is any logical validity in the. distinction laid down in the
Maxmilian
case and so firmly established by the subsequent decisions of this court, it must be applied in favor of the defendant and appellant here. What powers and duties are there which can be conferred and imposed upon a municipality that more clearly constitute a function of general government than the power and duty to maintain .a police force and provide suitable buildings for its occupation and use
%
The agency which caused the accident out of which the
Maxmilian
case arose was the driving of an ambulance wagon
through the streets of ¡New York by an employee of the commissioners of public charities and corrections. The statutory duties of the department of which the commissioners were the head were to care for paupers, destitute children, lunatics and certain classes of offenders. This court held that these functions were
“
acts to be done by them in their capacity as public officers in the discharge of duties imposed upon them by the legislature for the public benefit; ” and that they were not acts done for the city of ¡New York'“in what may be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit or advantage as a corporation, though inuring ultimately to the benefit of the public.”
The general governmental character of the functions of the police in our cities strikes me as much more apparent than was such character on the jiart of the commissioners of public charities and corrections in
Maxmilian
v.
Mayor, etc., of N. Y. (supra).
For one thing, their powers were strictly local, while in some respects the powers of municipal police officers extend throughout the entire state.
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Willard Bartlett, J.
The city of Rochester has been held liable in this action for the alleged negligence of the persons having charge of the condition and operation of an elevator in a police station building in that city. The plaintiff was injured by falling to the bottom of the elevator well, through an open door in the elevator shaft. He was a journeyman sheet metal worker in the service of a firm of contractors who were employed to repair the roof of the police station. He had been working upon the roof on the day before the accident and had been in the elevator two or three times on that day, when the elevator was operated by James A. Smith, who is described as an assistant engineer in the employ of the city. On the morning of the accident, which occurred on June 28, 1904, the plaintiff arrived at the police station, to go to work on the roof, at a few minutes before eight o’clock. As he entered the front doors of the building he met Smith, whom he recognized as the man who had been running the elevator vdien he went up and down. lie testifies that Smith was coming from the elevator, the door to the elevator being open. The plaintiff and a fellow-workman, evidently acting under the impression that the elevator was in a position to be entered with safety through the open door, proceeded toward the door; the plaintiff stepped through, and in consequence of the elevator having meantime been moved upward and away from the door by a police telegraph operator, the plaintiff fell into the shaft and down to the bottom, a distance of ten or twelve feet, sustaining the injuries of which he complains in this suit.
Smith contradicts the plaintiff, so far as the position of the door is concerned, saying first that it was shut but not locked, and then that it was partly open, and that he saw the plaintiff push the door back; but the jury were at liberty to accept the testimony of the plaintiff on this point as in accordance with the fact. Smith’s testimony, however, shows that the plaintiff was justified, when he met Smith, in inferring that lie had just come down in the elevator and had left the door in the position in which the plaintiff actually found it, whatever that may have been ; for Smith testifies that he had been on the elevator prior to meeting the plaintiff; that he left it, he should judge, with the door half way open ; that when he met the plaintiff and his companion he supposed that they wanted to go up in the elevator; and that he himself thought the elevator was still there, and had not noticed that it had been removed.
Under these circumstances the trial court and the Appellate Division were not only justified in holding that the alleged contributory negligence was a question for the jury, but they were required so to hold by authority very precisely applicable to the facts of the case at bar.
(Tousey
v.
Roberts,
114 N. Y. 312, 316.)
The more serious question involved in this appeal is presented by the proposition urged upon us in behalf of the appellant, that in no event can the city of Rochester be held liable for any alleged neglect on the part of an employee in the police department for operating in any manner an elevator in the police building. The argument is that the defendant, although a municipal corporation, was engaged solelj in the discharge of public governmental functions as distinguished from municipal functions, in the maintenance, management and repair of the police station, and, therefore, under the doctrine of
Maxmilian
v.
Mayor, etc., of N. Y.
(62 N. Y. 160) and similar cases, is not responsible for the acts or omissions of those engaged in applying the building to such public purposes of government. This was evidently the view entertained by the' learned justice who dissented in the Appellate Division. He
wrote no opinion, but simply placed his dissent upon the authority of
Snider
v.
St. Paul
(51 Minn. 466) where the Supreme Court of Minnesota held, in reference to an elevator accident in the St. Paul city hall, that the duty of providing and maintaining a city hall was a public and governmental use and, therefore, the city was not responsible for the negligence of its officers, agents or servants in the management of such building.
The broad general doctrine of the
Maxmilian
case, which is certainly not now open to question in the courts of this state, is that
“
two kinds of duties are imposed on municipal corporations, the one governmental and a branch of the general administration of the state, the other
quasi
private or corporate ; ” and “ that in the exercise of the latter duties the municipality is liable for the acts of its officers and agents, while in the former it is not.” (Cullen, J., in
Lefrois
v.
County of Monroe,
162 N. Y. 563, 567.) The question which confronts us, on the branch of this appeal now under consideration, is whether the duty exercised by the city of Rochester, under the general statutes relating to cities of the second class, of maintaining and caring for a ¡lolice station, is a governmental duty appertaining to the general administration of the state or a duty imposed and undertaken for the benefit of the municipality as a corporate body. If it falls within the first of these categories, the present action cannot be maintained.
To my mind, it seems perfectly clear that if there is any logical validity in the. distinction laid down in the
Maxmilian
case and so firmly established by the subsequent decisions of this court, it must be applied in favor of the defendant and appellant here. What powers and duties are there which can be conferred and imposed upon a municipality that more clearly constitute a function of general government than the power and duty to maintain .a police force and provide suitable buildings for its occupation and use
%
The agency which caused the accident out of which the
Maxmilian
case arose was the driving of an ambulance wagon
through the streets of ¡New York by an employee of the commissioners of public charities and corrections. The statutory duties of the department of which the commissioners were the head were to care for paupers, destitute children, lunatics and certain classes of offenders. This court held that these functions were
“
acts to be done by them in their capacity as public officers in the discharge of duties imposed upon them by the legislature for the public benefit; ” and that they were not acts done for the city of ¡New York'“in what may be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit or advantage as a corporation, though inuring ultimately to the benefit of the public.”
The general governmental character of the functions of the police in our cities strikes me as much more apparent than was such character on the jiart of the commissioners of public charities and corrections in
Maxmilian
v.
Mayor, etc., of N. Y. (supra).
For one thing, their powers were strictly local, while in some respects the powers of municipal police officers extend throughout the entire state. On this point it is necessary to refer only to section 181 of the act for the government of cities of the second class, familiarly known to lawyers as the White Charter (Laws of 1898, chap. 182), which provides among other things as follows:
“
The members of the police force, excepting the surgeons, in criminal matters, have-all the powers of constables under the general laws of the, state; and they also have power and it is their duty to arres*; any person by them found violating any of the penal ordinances of the city or laws of the state, and to take such person before the proper city magistrate, to be dealt with in the same maimer as if such person had been arrested upon a warrant theretofore duly issued by such magistrate. * * * They shall also have in every part of the state in criminal matters all the powers of constables; and any warrant for search or arrest issued by any magistrate of the state may be executed by them in any part of the state, according to the tenor thereof, without indorsement,” etc.
Indeed, 1 think it can hardly be disputed that, so far as relates to the appointment and maintenance of the police force, the city of Rochester exercises a public governmental function; so that it is not responsible for the unlawful or negligent acts of policemen in the discharge of their duties. (2 Dillon’s Municipal Corporations [3d ed.], § 975.) The suggestion is made, however, that inasmuch as the alleged negligence in the present action was not the omission of a police officer or member of the police force assuming to act as such but was done by an employee of the city engaged in the maintenance of a police station, the rule which denies the application of the doctrine of
respondeat superior
to the torts or negligent acts of police officers does not apply. This proposition simply brings us back to the question whether the safe and proper maintenance of a police station building is not an appropriate, not to say necessary, element in the maintenance of a police force; and if it is, whether it is not the exercise of a public governmental function. I have already indicated that I think these questions must be answered in the affirmative. The evidence leaves no doubt as to the character of this building. The city engineer, who had been in office several years, and was its custodian, testified: “ Since I have had charge of it, it has been occupied as headquarters for the police department and by the police court — nothing else. There are four stories in the building. The police telephone system is on the top story — police patrol and fire alarm. There is a portion of the fire alarm there and the police patrol calls. The third is the women’s cells and matron’s room. The second floor is the men’s cells and the court room. The first floor is the assembly ball and the office of the captain and some other officers. The assembly hall is where the policemen assemble and are given their instructions. That is the use to which the building has been put during all the time I have been city engineer, and to no other purpose.” It thus appeai-s that the structure was used in part as a jail for prisoners, as well as in part for the accommodation of the police force of the city of Rochester. The weight of judicial
authority in this country is in favor of the doctrine that the maintenance of a jail is a governmental function
(Lahner
v.
Town of
Williams, 112 Iowa, 428;
Gray
v. Mayor,
etc., of
Griffin, 111 Ga. 361;
Le Clef
v.
City of
Concordia, 41 Kans. 323 ;
City of New Kiowa
v. Craven, 46 Kans. 114;
Gullikson
v. McDonald, 62 Minn. 278;
Brown
v.
Town of
Guyandotte, 34 W. Va. 299); although a contrary view has been entertained in North Carolina
(Shields
v.
Town of
Durham, 118 N. C. 450) and by a Federal judge in the fourth circuit
(Edwards
v. Town
of
Pocahontas, 47 Fed. Rep. 268). I think that the prevailing view is based on sound reason, and that it is equally applicable to a police station, such as this was in Bochester. It was actually applied to a police station in the case of
Kelley
v.
Cook
(21 R. I. 29), where the defendant, city treasurer, was sued as the representative of the city of Woonsocket to recover damages for the negligence of the city in caring for a person who had been unlawfully 'arrested by a police officer and incarcerated in a police station, and by reason of the city’s neglect to provide for him therein, was rendered so ill that he died. The court said: “In the temporary care of persons under arrest the city by its police department is aiding in the enforcement of the laws and thus discharging a public duty for which it receives no pecuniary benefit, and for the manner in which it discharges this duty it is legally responsible to no one. The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity but in the interest of the people.”
I cannot see that any distinction can logically be drawn which will take this case out of the rule which defeated the plaintiff in
Maximilian
v.
Mayor
(supra), growing out of the fact that the person or persons whose alleged negligence caused the accident here were not at the time actually endeavoring to exercise any authority over the plaintiff, or with reference to the plaintiff,
as officers or members of the police force.
If their acts were in aid of the maintenance of the police station, and such maintenance by the municipality was as much the exercise of a public governmental function
as was the organization or the regulation or the discipline of the police force itself, then the non-liability of the city depends on the character of the duties thus imposed and assumed, and not at all on the relation to the municipality of those affected by the manner in which such duties may be discharged.
The point is made by the learned counsel for the respondent that the principal question which I have discussed was not raised by the answer. It is a purely legal objection to the plaintiff’s right to recover which it was not necessary to plead. The evidence as to the character of the building came in without objection and was uncontroverted. The point was distinctly raised on the defendant’s motion to dismiss, and the ground on which Mr. Justice Nash based his dissent in the court below shows that it must have been considered by the Appellate Division.
I think that the judgment should be reversed and a new trial granted, costs to abide the event.