(dissenting). I am not prepared to agree with the theory that section 12-a of the Court of Claims Act paves the way for liability in this case. As I read the section, it means only that the State waives its sovereign immunity for liability for the torts of its employees, and consents to have its liability determined in accordance with the same rules of law that apply to an action against an individual or corporation. The rules meant are obviously not rules of practice, but substantive rules of law which go to the question of liability. Sheehan v. North Country Community Hospital (273 N. Y. 163) holds nothing to the contrary.
It is still the law that a public hospital corporation is not liable to a patient for the torts of physicians and nurses if the hospital has used proper care in the selection of such physicians and nurses. (Schloendorff v. New York Hospital, 211 N. Y. 125; Mills v. Society of New York Hospital, 242 App. Div. 245; affd., 270 N. Y. 594; Phillips v. Buffalo General Hospital, 239 id. 188.) The test in this case, therefore, is whether liability would exist if the hospital in question was an ordinary public hospital instead of a State institution. I think the answer must be in the negative in so far as the acts of doctors and nurses are concerned. There is of course the conduct of another party involved — the pharmacist at the hospital. Assuming, however, that he may have been guilty of negligence, I doubt if he can be considered merely as an administrative employee. He practiced a profession, and quite logically the State should be no more liable for his acts than it would for those of physicians and nurses. It merely had the duty to exercise care in his selection. The fact that he resided at the hospital is of no moment. (Schloendorff case, supra.)
For these reasons I dissent from the opinion for affirmance as modified, and vote to dismiss the claim.
Award modified by increasing the sum from $1,500 to $5,000 and the sum of $150 funeral expenses, with interest thereon at the rate of six per cent from the date of death of said deceased, to wit, November 10, 1938, and accordingly as so modified judgment affirmed, with costs to claimant.