(dissenting). In my opinion, the verdict in plaintiff’s favor should be set aside as against the weight of the evidence, and a new trial granted.
The plaintiff was riding in the police car on assignment. to traffic patrol. It was his duty to act as ‘ ‘ recorder. ” His companion, patrolman Budris, was the operator of the police car. The plaintiff’s injury arose from a collision with a second automobile at an intersection while the plaintiff and Budris were pursuing a third automobile whose operator had committed a traffic violation. The issue of whether Budris was legligent *68in the operation of the police car hinged on the sounding of its siren prior to the collision. Both Bndris and one Lynch, a disinterested witness, testified that the siren had been audible. The plaintiff and the operator of the second automobile testified that the siren had not been sounded. ■
If the jury accepted the testimony that the siren was audible, then Bndris was not negligent, and the verdict is against the weight of the evidence. The police car would then be entitled to the right of way at the intersection while the siren was sounded (New York City Traffic Regulations, §§ 2-B, 80; cf. Bull v. Drew, 286 App. Div. 1138; County of Broome v. Binghamton Taxicab Co., 276 App. Div. 438; Kirk v. Magee, 1 A D 2d 452; Garrett v. City of Schenectady, 268 N. Y. 219). On the other hand, if - the jury accepted the testimony that the siren was not audible, then the plaintiff was guilty of contributory negligence. In such event, as recorder, he should have pressed the button located on the dashboard in front of him in order to activate the siren; his failure to do so was a concomitant and substantial factor in the happening of the collision.
Although it is a question usually left to the jury’s determination whether a passenger has been contributorily negligent (Nelson v. Nygren, 259 N. Y. 71, 76; Merkling v. Ford Motor Co., 251 App. Div. 89, 91), this is not the usual case; nor is plaintiff the usual passenger. He was specifically assigned to the kind of duty whose performance necessarily required the pursuit in which he and his partner had engaged at the time of the accident. Once the pursuit began, it fell upon him as the recorder to activate the siren. As a matter of law, then, his failure in carrying out his duty constituted contributory negligence (cf. Mignery v. Gabriel, 2 AD 2d 218, affd. 3 N Y 2d 1001).
I do not believe, however, that the fellow-servant doctrine applies here. Under the modern view, that doctrine should not be extended beyond its limitations (cf. Uravic v. Jarka Co., 282 U. S. 234, 241; Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27; Prosser, Torts [2d ed.], § 69, pp. 385-386; see, also, Setzkorn v. City of Buffalo, 219 App. Div. 416, affd. 246 N. Y. 605). The City of New York has not elected to bring its police officers under the Workmen’s Compensation Law (Workmen’s Compensation Law, § 3, subd. 1, group 19). We should not be astute to expand the fellow-servantrule to police officers, since: (1) the: traditional concept of po-licemen and" firemen is to consider them not as fellow employes of the city, but rather as agents of- the State (Miller v. City of Albany, 158 Misc. 720, affd. 247 App. Div. 848); and (2) in the statute imposing liability upon the city (General Municipal Law, '§ 50-a) there is no exception whereby *69the city is exempted from responsibility for the negligent acts of a fellow servant (Robinson v. City of Albany, 14 A D 2d 626).
I deem it unnecessary to pass upon the merits of the city’s appeal from the intermediate order, in view of the respective positions taken by the majority and by Presiding Justice Beldock.
Hghetta and Brennan, JJ., concur with Hill, J.; Beldock, P. J., concurs with Hill, J., in dismissal of appeal from order, but dissents as to the reversal of the judgment and as to the dismissal of the complaint, and votes to affirm the judgment, in opinion. Hopkins, J., concurs with Hill, J., in reversal of the judgment but dissents as to the dismissal of the complaint, and votes to grant a new trial, in opinion.
Judgment reversed on the law, without costs, and 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. Appeal from intermediate order dismissed as academic.