The duty of a municipality to care for its poor and indigent arises from statutory enactments, as there is no common-law requirement. (People ex rel. Town of Blenheim v. Supervisors of Schoharie County, 121 N. Y. 345.) There is no immunity under the doctrine of governmental functions unless the negligence arises in connection with the discharge of a governmental function directed and required by a statute of the State of New York. (O’Brien v. Town of Greenburgh, 239 App. Div. 555; Gillen v. Home Owners’ Loan Corporation, 255 id. 631; affd., 280 N. Y. 755.)
The wages were paid by the United States government to the W. P. A. project workers. The rent, heat, light and materials were furnished by the city of Binghamton, which received the manufactured products. These were distributed by the welfare department of the city. There is no statute of the State which requires the city to participate in this manufacturing venture. The United States government offered to pay the wages from funds which it had raised by taxation, or had borrowed, to persons who would manufacture garments or necessary household articles. The city of Binghamton was not under a mandate to accept the offer of the Federal government. The items which were manufactured could have been purchased if the city welfare department determined they were needed. The injury to plaintiff resulted from the sewing project. The city and county had leased a building, each municipality paying one-half of the rental. The city constructed a partition and arranged a passageway to the lavatories and toilets. It was the duty of the city to keep this passage in a reasonably safe condition for the use of the workers. The evidence clearly establishes the city’s failure in this regard. The moneys paid to plaintiff by the Federal government were wages and not a dole. (Matter of Liebowitz v. Goldwater, 161 Misc. 115; Dibner v. Cousminer, 157 id. 229.) Her standing was not different from that of any employee, and the landlord owed to her the same obligation of care.
The city’s liability arose for failure to keep the common passage in a reasonably safe condition. The unsafe condition resulted from the careless manner in which a city or county employee stacked barrels of powdered milk adjacent to the passageway. The powdered milk was furnished by the United States government, it acting in a proprietary capacity, Edibles were purchased by *696the government, some were sold, some were designated “ surplus' goods.” Prior to the time that the surplus goods were delivered to the needy, they were stored in this building. Some were used by the city and some by the county. The city could accept the gift of these surplus goods or not, as it determined wise. There is no statutory requirement or direction in this regard. The stacldng and storing of these items to be used in common by the city and the county was not a governmental function.
The judgment and order should be affirmed.
Crapser, J., concurs; Heffernan, J., concurs, in a memorandum; Bliss, J., dissents, in an opinion, in which Foster, J., concurs.
Heffernan. J.The proof in this case amply sustains the finding of the jury that the defendant was negligent and that plaintiff sustained her injuries without fault on her part.
The only other ground on which defendant seeks to escape liability is that at the time it was engaged in the performance of a governmental function. Whether a particular power should be classed as corporate or civil has resulted in a considerable diversity of opinion. The reported cases disclose that the great difficulty which courts have experienced on this subject has been in ascertaining clearly and accurately the line of demarcation between public or governmental duties and private or corporate duties.
The exemption of - municipal corporations from liability for acts done in the exercise of governmental powers should be strictly construed. There can be no doubt that the doctrine of non-liability is opposed to enlightened legal opinion. (Workman v. New York City, Mayor, etc., 179 U. S. 552; Augustine v. Town of Brant, 249 N. Y. 198; Matter of Evans v. Berry, 262 id. 61; Sheehan v. North Country Community Hospital, 273 id. 163.)
Defendant stresses the fact that when plaintiff was injured it was engaged in caring for its destitute inhabitants and in the distribution of public relief and that consequently it is exempt from responsibility for its tort.
We concede that the conduct of public charities and the relief of the indigent unquestionably are of such a nature as to carry immunity from liability for the acts or omissions of those through whom such duties are performed. That argument is not available to defendant. The record before us clearly indicates that at the time in question defendant was not performing a duty imposed upon it as the agent of the State in the exercise of a strictly governmental function but was acting in an administrative, ministerial or proprietary capacity and hence it is liable.
The judgment and order appealed from should be affirmed, with costs.