In our opinion an award should have been made to the claimants. We believe that, at the very least, the determination of the Court of Claims Judge was against the weight of the evidence. The claimants’ versions of their conferences with Olin, the psychiatric social worker who represented the Rome State School, were more convincing and believable than that of Olin. It is inconceivable that, had *452the Seavys known the truth about Cook, whom they employed, they would have taken him into their home to work upon their farm.
However, we would go further and hold that the record discloses that an award should have been made as a matter of law. From the testimony of the State’s witness Olin, who knew the history of Cook, technically called “ the patient ”, it is obvious that in his conferences with the claimants he was less than candid and forthright in stating the character and past history of this mentally retarded young man whom he placed with them. Olin said that he told Mr. Seavy that the boy had been in his school for a little over a year and had a very good record, that he had always been polite and had done his work well, and that all of the staff said he was a good prospect and wanted to work. He did not tell him that the patient had been promised that if he behaved for a year he would be put out for employment and that therefore he had a definite reason cunningly to try to convince the Rome school authorities that his character had changed. Furthermore, he did not tell claimants that only one year earlier the authorities of the Wassaic State School, where for nine years he had a very bad record, had asked for his transfer not because they had determined that he was ready for vocational training but because they were having trouble with a group of boys, including Cook, and it was decided that if they separated them and moved them into various institutions it would alleviate the situation at Wassaic. The boy probably should not have been sent to Rome for rehabilitation, but we make no particular point of this except as it concerns his entire background.
When Olin was questioned as to whether he disclosed the details of Cook’s bad conduct at Wassaic, he tried to take refuge in subdivision 9 of section 34 of the Mental Hygiene Law, saying that the records were confidential. But there was nothing which prevented him from saying that the boy had a very bad record before being transferred to Rome. In fact, he testified that he told claimants generally of Cook’s record at Wassaic but when pressed to state what facts he had disclosed to them, his reply was merely ‘ ‘ that the boy had a quick temper and was disagreeable at Wassaic ”.
The clinical summary of the so-called patient, prepared on his leaving Wassaic, shows that Cook was something more than a mentally retarded boy with a quick temper and a disagreeable disposition. He was a mental defective unable to adjust “ at school or at home ”; he was unco-operative, seclusive, disoriented in all spheres; he lacked insight and judgment; he *453was sullen, dull and apathetic, a familial moron with “ behavior disorders ”; he had frequently displayed quick temper, was resentful of correction, mischievous, sneaky; “he developed into a serious behavior problem, slapping and kicking other patients and was discovered, together with two other patients, planning to jump an attendant * * * he was found to be very sullen, impudent, antagonistic and a sex problem ”; on at least one occasion he had thrown a cup at another patient, which struck the other patient’s eye; “he was active in disrupting the morale of other patients and causing a disturbance in the dining room ”; he had escaped (technically called “ elopement ”) from the institution on three occasions; he had used obscene and threatening language to the employees and physicians ; he had ‘ ‘ frequently [been] involved in misconduct and mischief in the building ”; he was defiant and verbally threatening when interviewed and cursed the Director and Clinical Director in front of other patients; he displayed sexual abnormalities ; on discharge his behavior disorders were described as “ unruly, cruel, emotionally unstable, inadequate, untidy”; and finally after he had been in Wassaic for about nine years the record recites, “Condition on Discharge: Unimproved”.
The majority of this court finds that there was nothing in this boy’s history to indicate a propensity toward arson. The Seavys, however, were entitled to know whether there was anything in his history to indicate a dangerous inclination to do harm to himself or others or to the property with which he would be working. Surely they were entitled to a fair statement or analysis of the boy’s bad character and his unfavorable and, we may say, dangerous disposition before they accepted him as an employee. His conduct upon his release after 10 years of institutional care amply confirms the propensities which are suggested by his history and shows that his character had not changed but that he was simply trying to be released from Rome. He admitted that 10 days after his employment by the Seavys he set the fire which destroyed their barn and farm equipment. He ran away from the Seavys five days after the fire. A week later he was placed on another farm from which he also ran away, stealing $72. In the month following he was arrested for burglarizing a gas station, and he was eventually sentenced to the Institution for Defective Delinquents at Napanoch.
However, if proof is needed of an incendiary disposition, the records of Wassaic disclose it. Olin admitted that these records showed that the patient was found with first- and second-degree burns on his body, extending from both axillas down and on *454both arms and on the front of his neck; that he had thrown cleaning fluid over his body. According to the statements of other patients he had done so intentionally, but according to the patient’s own statements, unintentionally. It cannot be stated unequivocally from the record that after he had thrown this fluid upon his body he had not caused it to burn, so while this may or may not have demonstrated tendencies toward incendiarism, it would at least be important for a 66-year-old dairy farmer who was going to employ this patient to work in the barns of his dairy farm to know about the incident. It may well be that because of the highly flammable conditions in a dairy barn the knowledge of this episode alone would have caused the claimants to reject him.
In the prevailing opinion it is recognized that full disclosure would probably have prevented this effort at rehabilitation. If this was the case, and we agree on this point, then the school authorities had all the greater obligation to warn the prospective employers of the nature of the risk they were undertaking. They were entitled to at least as much consideration as was the boy, Cook. Advantage should not have been taken of them by misrepresentation, deception and by the failure to convey to them very material and vital information so that they might fairly make their own determination on fully presented statements of the character of Cook and his suitability for dairy-farm work.
It is very significant that before Cook was accepted by claimants, George Seavy signed an ‘ ‘ Agreement regarding patient discharged or placed on convalescent care ” with the Rome State School. The agreement commences: “In accepting custody of Donald Cook on Working Convalescent Care, after Timing been informed of his condition, I agree to the following:” (italics supplied). Here follows the agreement of Seavy to join with the Rome State School in an effort to rehabilitate the patient. In other words, the effect of this agreement was that Seavy and the State embarked in a joint enterprise in an effort to rehabilitate. Their position was akin to that of persons about to enter into a partnership or a joint enterprise, and each was entitled to the utmost good faith on the part of the other. That, of course, would call for a quite complete disclosure of any fact that might in any way influence the execution of the mutual agreement or afford either party an opportunity to determine whether or not to enter into it. This was practically, if not truly, a fiduciary relationship which called for trust and confidence and the highest degree of candor.
*455We are in complete agreement with the social philosophy covering rehabilitative placements expressed in Excelsior Ins. Co. of N. Y. v. State of New York (296 N. Y. 40, 46). We believe that efforts at rehabilitation are highly commendable. We must not overlook the fact, however, that a program of rehabilitation of this type is an undertaking which calls for co-operation by both parties to the transaction. Efforts toward rehabilitation, laudable though they may be, should not be at the sole expense of innocent victims such as the claimants.
Our dissent is not based upon any failure or inaccuracy of professional judgment as to whether this boy was ready for placement. It has been held very definitely that liability may not be based on honest mistakes of the judgment of experts. (Excelsior Ins. Co. of N. Y. v. State of New York, supra; Taig v. State of New York, 19 A D 2d 182; St. George v. State of New York, 283 App. Div. 245.) The cases just cited are easily distinguishable on their facts from the present case because they were escape or so-called elopement cases and there was no communication, of course, between representatives of the State and the persons who were injured by the escapees. The basis of our dissent is not in the negligent classification on placement (although there is ample evidence of that), but in the breach of a duty to fairly communicate any facts concerning the condition and past history of the patient that might reflect upon or be determinative of his then character and the prospective employer’s decision to accept him and join in the rehabilitative efforts. In other words, to use the State’s own language, claimants were entitled to be “informed of his condition ”, which should call for complete candor one to the other. Before a relationship of employment could fairly be established, the employer should have been permitted to make his own independent determination as to whether he wanted to accept a patient of this character and disposition.
We would reverse the judgment appealed from and grant judgment in favor of the claimants for the amount of their loss.
Henry and Noonan, JJ., concur with Goldman, J.; Williams, P. J., dissents and votes to reverse and award judgment in favor of claimants in the sum of $9,776, with costs to claimants, in opinion in which Bastow, J., concurs.
Judgment affirmed, without costs of this appeal to either party.