This action has been brought to recover damages for forcibly removing the plaintiff, against her will, from her own residence to the small-pox hospital, while she was afflicted only with the disease known as measles. According to the complaint the removal was in part the result of the authority and action of the board of health of the city of New York. And because that board exercises its authority wholly under the laws, and not under the control or direction of the municipal government of the city, the defendant demurred to the complaint upon the theory that it could not, under the circumstances, be held liable for the conduct or act of the servants of that board.
This theory derives support from the decisions made in the case of Maximilian v. Mayor, etc. (9 N. Y. Sup. Ct. Rep’ts, 263 ; affirmed 62 N. Y., 160). And it has been farther illustrated and sustained by the very able briefs presented by both parties upon the argument of this appeal. But in the present case other important facts are alleged for the purpose of supporting the defendant’s liability, beyond those upon which that case was considered and decided. And they show that the defendant, by means of its own employes, participated in the commission of the gross wrong which was suffered by the plaintiff. And if that were the case it may *548have made itself liable for the legal consequences of the plaintiffs removal and detention. - Upon this subject it was stated that “ the defendants, through their said department or board of health, falsely claiming that this plaintiff was sick with small-pox, took her from her house and family,” etc.; “that said servants and agents of the defendants, although expressly requested thereto, wholly failed and neglected to canse any medical examination to be made of her. disease before removing her; that the defendants, through their agents, were guilty of gross carelessness and negligence in the matter.”
It was also alleged that after her removal she was placed and detained in an open shed, “ and was, through the carelessness and negligence of the defendant’s agents and employes, obliged to remain therein and in the company of persons actually sick of small-pox, for the space of about one hour.” That after she was taken to the hospital “ she was examined by a number of physicians belonging thereto, and who were employed by said defendants to examine the patients therein, who discovered that her disease was not small-pox but measles, and yet these physicians and the other agents and employes of the defendants having charge of said hospital, alleging that they had no power in the premises, refused to permit said plaintiff to be taken to her residence, but sent her against her will to another hospital at Blackwell’s Island, and that by negligence and carelessness of the defendant’s employes having charge of her removal, she was compelled, although in a sick and enfeebled condition, to walk a long distance through wet grass a.nd at a late hour at night, so that at the time of her arrival at such hospital her clothing was soaked with water, and that she was there detained against her will for the space of seven days, where she was treated with great carelessness and brutality upon the part of the employes of said defendants having charge of said hospital.”
These are material allegations and consequently are admitted by the demurrer, and must, for the present consideration of the case, be accepted as the truth. They show that the plaintiff was made the subject of the most cruel wrongs on the part of persons in the employment of the defendant, and in the course of the discharge of their duties. And that being the case, as the defendant is alleged also to have derived a personal and pecuniary -benefit from the *549existence and acts of tbe health department or board of health, a case was presented which, under the authorities, was sufficient to render the defendant liable as a municipal corporation. (2 Dillon on Municipal Corporations, § 172, and cases referred to; Mayor v. Bailey, 2 Denio, 433 ; Weightman v. Corporation of Washington, 1 Black, 39 ; Nebraska City v. Campbell, 2 id., 590.)
It may be that the plaintiff has stated her case much more unfavorably to the defendant than the evidence will sustain, but if she has, no means exist for correcting it while the facts alleged are admitted on the record. The argument proceeded upon the assumption that such was the case, and it was not very positively denied by the learned counsel for the plaintiff. But as the case must be decided upon the facts disclosed by the record alone, and not upon concessions appearing to be made concerning the probable truth of their existence, what was said in that respect in the course of the argument, cannot be allowed to have any weight in the disposition which should be made of it. If the facts turn out as they have been alleged, and it must now be supposed that they will, then, even if the wrong was in part committed by the health department, acts of an unlawful nature are also shown to have been perpetrated by the officers and agents of the defendant, and for them, and to the extent the plaintiff was injured by them, it should be held to be legally liable.
It is seldom so grave wrongs are alleged against public agents and officials. And if they existed as they have been described, ^tliey should be criminally punished as well as civilly redressed. The public has such an interest in the case as should lead to its vindication for the protection of others, who may be in danger of similar abuses of authority.
The order should be affirmed, but with leave to the defendant to withdraw its demurrer and answer within twenty days, upon payment of the costs arising upon the demurrer and the appeal, and with the usual disbursements.
Davis, P. J., and Brady, J., concurred.Order affirmed with leave to defendant to withdraw demurrer, and answer in twenty days on payment of costs arising upon demurrer and the appeal, and with the usual disbursements.