(dissenting in part). We dissent from the majority opinion insofar as it holds that a county is not vicariously liable for the tortious acts of the employees maintaining its jail. The State would be vicariously liable for the negligence of its employees if Jerome Wilson had injured himself while a prisoner in State prison or in. the State Police barracks (see Gioia v State of New York, 16 AD2d 354, 356-357, app from remand 22 AD2d 181, 185, and cases cited therein), and a municipality similarly would be liable if he had done so while a prisoner in a municipal jail (O’Grady v City of Fulton, 4 NY2d 717; Dunham v Village of Canisteo, 303 NY 498). The same rule should apply to counties. It does not because of an anachronistic rule of law which holds that neither the Sheriff nor the county is liable for the tortious acts of Deputy Sheriffs performing criminal duties.
The rule exempting the Sheriff from personal liability for acts of his deputies performing criminal functions was established by the Court of Appeals (see Barr v County of Albany, 50 NY2d 247, 257, and cases cited therein). The rule exempting the county from liability was created by this court (Isereau v Stone, 3 AD2d 243; see Matter of DeLosh v City of Syracuse, 64 AD2d 814; Perry v Custodi, 52 AD2d 1063; Foyster v Tutuska, 25 AD2d 940). Although it has been accepted by at least one other appellate court (see Snow v Harder, 43 AD2d 1003), it has never been adopted by the Court of Appeals1 and we should not perpetuate it.
The rule has been justified on two grounds: (1) because Deputy Sheriffs are not agents of the county and (2) because the State Constitution provides that a county shall *13not be liable for the acts of the Sheriff and the immunity contained in that provision has been extended by judicial interpretation to Deputy Sheriffs. Since we believe that the deputies are agents of the county and that the county enjoys no such constitutional immunity for acts of deputies performing criminal functions, we would overrule our prior decisions and hold that plaintiffs have stated a cause of action against the county based upon its vicarious liability for the negligent acts of Wilson’s jailers, defendants Cunningham and Thomas.
The Isereau rule was based on the Court of Appeals decision in Matter of Flaherty v Milliken (193 NY 564) which held that Sheriffs’ deputies performing civil functions were not subject to the Civil Service Law. The Court of Appeals reasoned that since a Sheriff was liable under traditional agency rules for the negligence and misconduct of deputies performing civil functions, he should not be limited by the provisions of the Civil Service Law in appointing them (see, also, Matter of Grifenhagen v Ordway, 218 NY 451; Matter of O’Brien v Ordway, 218 NY 509). Conversely, the court stated that a Sheriff was not liable for the acts of his deputies while they were performing criminal matters because in those cases the deputies were “in the service of the public”. Relying upon that statement, we reasoned in Isereau (3 AD2d 243, supra) that since the criminal deputies were in the service of the public, they could not be in the service of the county. Thus, the rule was stated that the county was immune from liability for the acts of deputies performing criminal functions.
The source of the Flaherty dictum (193 NY 564, supra) is lost in antiquity, and it is not clear what the court meant by it. In the broad sense, all public officers are “in the service of the public”. That status does not mean, however, that they are free agents, existing in a state of nature, or that their principals are any less liable for their acts. If the county is required by law to maintain and support a jail, and it is (County Law, § 217), and if the county’s Deputy Sheriffs are required by law to staff it, and they are (Cor*14rection Law, § 500-c), it would seem that there is sufficient connection between the parties to make the county liable in tort for the acts of the deputies caring for its prisoners (County Law, § 53, subd 1). But if the relationship of jailer and jail owner is not sufficient to establish vicarious liability, then the language of section 50-j of the General Municipal Law is broad enough to make the county liable for the deputies' torts.2
This agency relationship notwithstanding, we have held that the county’s immunity is also based on constitutional grounds. Because the Constitution provides that the county shall not be liable for acts of the Sheriff, the reasoning goes, and deputies are employees of the Sheriff, the constitutional provision also exempts the county from liability for the acts of the Sheriff’s deputies (Matter of DeLosh v City of Syracuse, 64 AD2d 814, supra; Perry v Custodi, 52 AD2d 1063, supra; Snow v Harder, 43 AD2d 1003, supra; Isereau v Stone, 3 AD2d 243, supra).3 Finding the immunity was of constitutional dimensions, we held that the courts were powerless to change it (see Perry v Custodi, supra; and see opn of Judge Froessel speaking for three Judges in Commisso v Meeker, 8 NY2d 109, 121, 123).
The rule is that deputies performing criminal functions are not in the employ of the Sheriff, however, and if that is so, then a county should not be entitled to use its exemption against liability for acts of the Sheriff to avoid liability for acts of the deputies. Moreover, the constitutional rationale for our rule clearly has now been eliminated, for the Court of Appeals recently and expressly held that article XIII does not protect a county from liability for acts of Deputy Sheriffs (Barr v County of Albany, 50 NY2d 247, 256-257, supra). In Barr the county assumed liability by enactment of a local law, but in other earlier cases vicarious liability had been imposed on the county by statute (see, also, *15McMahon v Michaelian, 30 NY2d 507, affg on opn below 38 AD2d 60; Commisso v Meeker, 9 AD2d 865; Sawyer v Town of Southport, 6 AD2d 553; Reck v County of Onondaga, 51 Misc 2d 259; see General Municipal Law, § 50-j). In either case, however, it is now clear that the county’s immunity for the negligent acts of a Deputy Sheriff performing criminal functions cannot be derived from the Constitution because if it were, it could not be eliminated by statute or local legislation. That being so, we should now apply traditional rules of principal and agent to impose vicarious liability upon the county for the tortious acts of Deputy Sheriffs.
There is also an overriding policy reason not to extend the constitutional provision to exempt the county from liability for the torts of Deputy Sheriffs and to hold the county liable. Although the Constitution exempts the county from liability for acts of the Sheriff, it requires that the Sheriff post security. Thus, the exemption works no hardship on the Sheriff’s tort creditors, for they have recourse against his security to satisfy their claim. There is no such requirement, however, protecting the creditors of Deputy Sheriffs and this court’s interpretation that the county is not vicariously liable for their torts leaves those in plaintiffs’ position without security to satisfy their verdict, if they recover one. Surely, the drafters of the Constitution could not have intended that result and we should not allow it.
It follows that if the deputies are agents of the county in maintaining the jail, and if section 13 of article XIII of the New York Constitution does not exempt the county from liability for the deputies’ torts, then the county should be vicariously liable because the State and its subdivisions have waived immunity from suit for the tortious acts of their agents (Court of Claims Act, § 8; Thomas v Consolidated Fire Dist. No. 1 of Town of Niskayuna, 50 NY2d 143, 147; Bernardine v City of New York, 294 NY 361, 365).
Dillon, P. J., and Moule, J., concur with Cardamone, J.; Simons and Doerr, JJ., dissent in part and vote to modify in accordance with an opinion by Simons, J.
Order modified, on the law, in accordance with opinion by Cardamone, J., and as modified affirmed, without costs.
. In Commisso v Meeker (8 NY2d 109), three Judges thought that the county enjoyed a constitutional immunity for the torts of Deputy Sheriffs. *13The judgment against the county was dismissed, however, only because a fourth Judge found the evidence of negligence insufficient. Three Judges would have affirmed the judgment against the county based on the negligence of the Deputy Sheriff.
. The Sheriff’s status as a constitutional officer does not affect the county’s liability for his deputies’ acts (see Drake v City of Rochester, 74 AD2d 996, affg 96 Misc 2d 86 [involving county liability for acts of an Assistant District Attorney]).
. The pertinent language is contained in article XIII (§ 13, subd [a]) of the New York State Constitution: “Sheriffs shall hold no other office. They may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff.”