I would affirm the judgment in favor of the plaintiff but drastically reduce the amounts awarded to a level consonant with our rules controlling damages in actions of this kind. I agree with the finding by the trial court that the proof of negligence was overwhelming. The security measures adopted were meaningless in view of the known dangers with which they were intended to cope. When coupled with the known fact that the very existence of the appellant’s private police force would greatly curtail, if not entirely eliminate, patrolling by the New York City public police force, the appellant’s measures were completely inadequate to meet a standard of ordinary prudence. I agree that this is not a Schuster type of case and that it does not meet the special standards required by Motyka v. City of Amsterdam (15 N Y 2d 134) vis-a-vis the City of New York, were this action founded upon a failure by the City Police Department. However, in my opinion, the Housing Authority exercises a proprietary function in the operation of its housing project and in its corporate capacity it is subject to the same tests of liability that a private landlord would be who undertook to provide security for its tenants and then abysmally failed to do so. The question of what is proprietary and what is governmental is a clouded one, often not easily determined. Warren’s Negligence (vol. 2C, pp. 214-215) states: “ [c]—Proprietary Functions. Functions considered proprietary in nature include illustratively, maintenance of parks and playgrounds, including zoos and swimming pools; ownership and maintenance of land, buildings and ,structures not intended for use for purely governmental purposes-, operation and maintenance of parking lots; maintenance of water works and water supply systems for the purpose of furnishing water to residents of the municipality, as distinguished from a water system maintained for the purpose of protecting the city against loss by fire; construction and maintenance of sewers and sewerage systems, except in case of failure to provide any sewers at all for fire protection; and operation and maintenance of transportation systems ” (emphasis added). New York Jurisprudence (39 N. Y. Jur., Municipal Corporations, § 186) is to the same effect. As to the legal consequences of this, that work (40 N. Y. Jur., Municipal Corporations, § 971, p. 219) states: “ Insofar, however, as a munici*419pal corporation acted in its private or proprietary capacity, the general rule was that it was liable in tort in the same manner as a private corporation.” However, it is not necessary for us to resolve this thorny question in order to dispose of this case, since even if public housing be considered a general governmental function, the effect of the waiver of sovereign immunity accomplished by the Court of Claims Act mandates that we treat the Housing Authority just as we would treat any private landlord (ibid., § 972; 4C Warren’s Negligence, p. 87).
It is true that the courts have engrafted on the waiver of immunity an exception for what is called a pure governmental function, i.e., police and fire protection (2C Warren’s Negligence, p. 223; 40 N. Y. Jur., Municipal Corporations, § 972). However, this also has its limitations. (See Dunham v. Village of Canisteo, 303 N. Y. 498; Koeppe v. City of Hudson, 276 App. Div. 443; and Bernardine v. City of New York, 294 N. Y. 361, where municipalities were held liable for the negligence of the public police department.)
I can discern no compelling public policy reasons to extend by implication this broad cloak of immunity to the private police force set up by the Housing Authority. As to the circumstance that it was done pursuant to law, it could not have been established without authorization of law and the fact that it was so authorized by statute does not equate it to the public police force of the city. Actually I see it as no different from a case where a private landlord might hire a private detective agency to patrol his housing development.
It is well settled that when a person voluntarily assumes the performance of a duty he is .required to perform it carefully although he could have avoided all liability by never having undertaken the task initially (41 N. Y. Jur., Negligence, § 22).
We have an almost exact analogy to our case in Amoruso v. New York City Tr. Auth. (12 A D 2d 11), where the First Department applied the rules of ordinary negligence to a case involving the alleged dereliction of the transit police force maintained by the defendant public Transit Authority under the authority of subdivision 16 of section 1204 of the Public Authorities Law. That law very closely parallels subdivision 5 of section 402 of the Public Housing Law which was assumed by the trial court to govern in the instant case. As the majority opinion points out, at the time of this incident in 1962 the housing police force was operating under the general powers set forth in section 37 of the Public Housing Law and it was not until 1967 that the specific provisions of subdivision 5 of sec*420tion 402 came into being. However, this was merely a restatement in more precise terms of what had been the situation for years under the general statute and does not, in my opinion, detract from the theme that from its inception this was not part of the public police force; nor was it at the time of this unfortunate occurrence; nor is it today. In principle the housing police force is indistinguishable from the transit police force and should be treated like it for purposes of determining liability in a case such as this.
The circumstance that is important is not the nature of the act itself, but who is performing it. Anyone can put out a fire, but it is not a governmental function unless it is the fire department which is doing it. For instance, were this appellant to allow its fire fighting equipment in the building to remain out of order and unusable and damage resulted therefrom, I believe it would have to answer therefor, albeit fire fighting, when performed by a city fire department, is a pure governmental function also.
Hopkins, Martuscello and Latham, JJ., concur with Rabin, P. J.; Gulotta, J., dissents and votes to modify the judgment by reducing the amounts of the recovery awarded to plaintiff and to affirm the judgment as so modified, with an opinion.
Judgment of the Supreme Court, Kings County, entered June 19, 1970, reversed, on the law, without costs, and complaint dismissed. The findings of fact below have not been affirmed.