The claimant Hawley was injured when he fell from a silo while working on a farm privately owned by one Thompson. The liability of the State is predicated upon the fact that claimant, who was an adjudicated incompetent, committed to the Syracuse State School, was employed on the farm while released from the institution on convalescent status (now community status). (See Mental Hygiene Law, § 132.) The award of the Court of Claims is founded upon a determination that an agency was established between the State and the farmer employer which rendered the State liable for the farmer’s acts of negligence toward the claimant.
We agree that the evidence is sufficient to support a finding that the accident resulted solely from the negligence of the employer. We do not agree, however, that liability for this negligence may be imputed to the State and without such an imputation there is no basis in the record for a finding of liability on the part of the State. No contemplated agency may be found from an examination of the relevant statutes. Therefore, if an agency was created it was by implication of general law and we find nothing to support this latter theory.
There is ample proof that Hawley was a fit subject for convalescent status. While he was of low mentality, he was not insane. Indeed, three years prior to the accident he had been recommended for discharge but, because his then employer was *362in arrears in the payment of Ms wages, his discharge was postponed to facilitate collection for him of the arrearage. At the time of the accident Hawley had been on convalescent status for seven years and Ms record indicates generally that he was a competent farm worker. Further, there is nothing to suggest that the State was negligent in . the placement of Hawley with Thompson or that the State was derelict in its general supervision of Hawley while on convalescent care with Thompson.
Section 132 of the Mental Hygiene Law, as in effect during the entire period of employment by Thompson, authorized the director of an institution for the care and treatment of mental defectives to grant convalescent status to a patient and thus permit him to leave the institution in the custody of a parent, relative, legal guardian, or other person. It was required that the patient be kept accessible to the representatives of the institution and the director was empowered to require his return at any time. Further, the person to whom the patient was entrusted, if required by the director, was mandated to report on the physical, moral and mental condition of the patient. Thus, it appears that the statute, in keeping with its rehabilitative purposes, contemplated that a patient who was not in need of institutional supervision would be afforded an opportunity to live as normal a life as permitted by his mental condition. Implicit in this was the expectation that the patient would enjoy freedom from institutional regulation commensurate with his demonstrated capacity. It was pursuant to this statute and its contemplated benefits that claimant was placed in the employment of Thompson.
Furthermore, it was specifically provided that the institution which released the patient should not be liable for his support during the period of his convalescent status. Under the statute such liability rested with the person in whose custody the patient was released. It is appropriate to note also that the convalescent care program is a development from the parole concept and that the initial statutory enactment provided that: ‘ ‘ The institution paroling a patient shall not be liable in any manner whatsoever for such patient while on parole.” (L. 1919, ch. 633, § 38.) In 1936 this provision was repealed and in its place there was added a provision that: “ The institution paroling a patient shall not be liable for his support while on parole.” (L. 1936, ch. 563, § 16.) The change in language came about as part .of a general revision of the Mental Hygiene Law and we ascribe no special significance to it. We have found nothing to indicate that the Legislature intended to broaden the liability of the State by this change in language.
*363A portion of the opinion in Excelsior Ins. Co. v. State of New York (296 N. Y. 40) is applicable and pertinent. We quote from page 46: “ Decision herein has a significance which transcends the issue of whether or not a money recovery should be allowed. In time gone by, mental defectives were confined and kept under constant surveillance. Medical and psychiatric advances, demonstrating the inadvisability of that system, prompted the State to abandon it and adopt the modern and therapeutically approved method of allowing the moron a freedom of action without close and continual watching. To hold the State liable in a case such as the present may have an inimical and retarding effect on the treatment of mental defectives. The State, faced with accepting responsibility as an insurer of any damage the moron might cause, may well be tempted to depart from its salutary procedure, may well be influenced to revert to the outmoded and disadvantageous system of confining the mental defective, of keeping him under constant surveillance, while he is being trained to make those social adjustments essential to independent and successful living.” Imputation of liability in the present ease would be repugnant to the philosophy of rehabilitation expressed above. This accident could not have been averted by the State by any means short of “ constant surveillance ” or the imposition of such restrictions upon the patient’s activities as to deter employment and thus impair the benefits and defeat the purposes of the convalescent care program. Affirmance of the award might well lead to a reconsideration and reappraisal of this valuable and productive social program.
In granting Hawley convalescent status the director of the Syracuse State School entered into a contract with the farmer employer. In that contract it was clearly set forth that Hawley was a patient on convalescent status and Thompson undertook “ to supervise him at all times.” He further agreed to care for his material needs, pay a monthly salary to the school for Hawley’s benefit, notify the director of any serious illness or abnormality of conduct, report to the director regarding his conduct and general condition and provide social security and workmen’s compensation insurance for his benefit. The provision for workmen’s compensation insurance was tantamount to a recognition of the fact that in the event of an accident in the course of his employment Hawley would be required to look to his employer alone for compensation. This demonstrates clearly that at the time the contract was entered into the State and Thompson had no intention of creating an agency which would bind the State. Their concern was with providing financial protection for the claimant in the event of injury. This is *364entirely inconsistent with any theory that Hawley would have a claim against the State for Thompson’s negligence as distinguished from a claim against Thompson’s compensation insurance carrier. While it appears that the State may have been somewhat remiss in not enforcing the requirement that the farmer provide workmen’s compensation insurance, there was no causal relationship between this failure and the claims of negligence which are before us. The present claim is based purely and solely on imputable negligence, and does not purport to be based upon the State’s failure to enforce the contractual obligation of the farmer employer. Moreover, if this action stemmed from the breach of this portion of the agreement the amount of the award would have to be computed in a completely different manner than was employed by the Court of Claims Judge.
We agree with the majority that Hendler v. State of New York (33 Misc 2d 171) upon which the Court of Claims Judge relied with the statement that: ‘‘ This case cannot be distinguished from Hendler v. State of New York (33 Misc 2d 171), in which an award was made to claimant” is readily distinguishable.
We have said that the record indicates that Hawley was a trained and competent farm worker who had given satisfactory service for several years. It was clearly in the interest of his rehabilitation that he was assigned to Thompson’s farm. The statement of the Court of Claims Judge (p. 276) that “It was known that he could perform only simple chores under close supervision” is not supported by the evidence. Hawley was considered by the school to be a capable and trained farm helper whose mental problems were social in nature. Under these circumstances the State’s responsibility to him was limited to keeping informed as to the progress of his rehabilitation and recalling him in the event of an unfavorable change in his condition or his environment. To impose liability under these circumstances would in effect make the State an insurer of the acts of the farmer, an independent employer.
The judgment should be reversed and the claim dismissed.
Henry and Noonan, JJ., concur with Bastow, J.; Williams, P. J., dissents in opinion in which Del Vecchio, J., concurs.
Judgment affirmed, with costs.