Poniatowski v. City of New York

Hill, J.

Plaintiff, a New York City policeman, was seriously injured when an unmarked police radio car, owned by the defendant city and in which he was a “ recorder ” passenger, collided with another vehicle while the police car, then being operated by a fellow police officer, was in pursuit of a third vehicle which, in violation of traffic regulations, had ignored a stop sign.

Plaintiff has obtained a substantial judgment against the city, his employer, based upon the jury’s verdict in his favor. The city,appeals from the judgment on the principal ground that the plaintiff and the policeman who operated the police car at the time of the accident were fellow servants. The city contends that plaintiff, as one of its employees, may not recover against it for an injury caused by the negligence of the operator who was a fellow servant of the plaintiff, while they were both engaged in the performance of their official police duties.

At common law, police officers were not regarded as municipal employees. In Matter of Evans v. Berry (262 N. Y. 61, 67-68), the court said: “At common law cities were not liable for the torts of police officers. Although appointed and paid by the city, such .officers were not regarded as municipal agents or servants. When acting in the course of their duty, they were said to be performing a governmental function. The city was immune from liability because the doctrine of respondeat superior was held to be inapplicable. This was a rudimentary survival of the maxim 1 The King can do no wrong. ’ ”

The Legislature fully waived the State’s immunity “from liability for the torts of its officers and employees ’ ’ by enacting *66s.ection 12-a (now § 8) of the Court of Claims Apt (L. 1929, eh. 457). In the same year it enacted section 282,-g of the Highway Law (L. 1929, eh. 466), which is now section 50-a of -the General Municipal Law, and which provides in' pant that: “ Every city *.-=*' * .shall be liable for the .negligence of a person. duly. appointed * * * to . operate. a municipally owned vehicle within the state in' the discharge óf a statutory .duty ‘imposed upon the municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment. Every such appointee shall, for the purpose of -this section, b,e deemed an employee of the municipality

There can be no doubt that for the purpose of determining the city’s liability under the latter statute the operator of a police car must be deemed an employee ,Qf tlie city."

Paragraph 55.2 of chapter 3 of the Regulations of the New York City Police Department is entitled Duties of Radio Motor Patrol Cars.” It provides that “ ,[T']he precinct commander shall assign qualified operators to each radio motor patrol car. He shall also assign recorders * * [who] must be qualified operators.’’

Since plaintiff, as a recorder in the city’s employ, must also be a f.‘ qualified operator he has the same status as bis partner, the driver of the police car; and since the plaintiff was injured by a fellow servant, the common-law fellowTserv.ant doctrine constitutes .a complete defense (Fay y. De Camp, 257 N. Y. 407; Riley v. Carlton, 290 N. Y. 913; Loughlin v. State of New York, 105 N. Y. 159).

The fellow-servant doctrine was not invoked in Wiseman v. City of New York (13 A D 2d 796, affd. 10 N Y 2d 952), -nor in Ottmann v. Village of Rockville Centre. (273 N. Y. 205, 275 N. Y. 270), either on the original appeal (273 N. Y. 205) or upon its reargument (275 N. Y. 270). In the present case, however, the doctrine was specifically pleaded as an affirmative defense to the action.

Plaintiff relies heavily on the decision in City of Albany v. Standard Acc. Ins. Co. (7 N Y 2d 422) — a case similar to the one at bar. That case also involved two policemen in a police car;. through the negligent driving of one of them, his fellow officer (the passenger) was injured. Although the court there was concerned with.the liability of an insurer under a contract of insurance, thp court stated that policemen were employees of the city.

We have also reviewed the other points raised by the city. In pur opinion they are without merit.

*67The judgment should be reversed on the law, without costs, and the complaint dismissed.on the law.

We have considered the facts and would affirm the judgment if we Were not dismissing the complaint on the law.

The appeal from the intermediate order should- be dismissed as academic.