2. MONROE COUNTY - INSANE ASYLUM-NON-LIABILITY FOR NEGLIGENCE - PERSONAL INJURY. An employee at the Monroe County Insane Asylum, maintained by the county for its insane, under chapter 82, Laws of 1863, and chapter 633, Laws of 1870, was injured in 1891 while operating a steam mangle in the laundry, and brought an action against the county to recover damages on the ground of negligence. Held, that the status of the county on the day of the injury, which was prior to the taking effect of the County Law of 1892, must determine its liability; and that the county, while acting under the above statutes of 1863 and 1870 in caring for its insane, although not then a municipal corporation, was engaged as a political division of the state in the discharge of a public duty, and, consequently, was not liable to the plaintiff in damages for the negligence of its agents.

3. REVENUE FROM PRIVATE SOURCES. It appeared that, when possible, the expense of maintenance was collected from the estates of lunatics in the asylum, or from those legally liable for their support, and that the asylum received a small sum annually from the sale of surplus farm products. Held, that the revenue derived from these sources was merely incidental and tended to some little extent to lessen the public burden assumed by the county, and was in no sense a source of profit which could be deemed to render the operation of the asylum a private business. Reported below, 79 Hun, 120.

(Argued May 27, 1895; decided October 8, 1895.)

APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made June 20, 1894, which sustained defendant's exceptions ordered to be heard in the first instance at the General Term, set aside a verdict in favor of plaintiff and granted a new trial.

The action was brought to recover damages for a personal injury sustained by the plaintiff, alleged to have been caused by the defendant's negligence.

The facts, so far as material, are set forth in the opinion.

Eugene Van Voorhis, for appellant. The defendant is responsible for its negligence. The defendant claims to be exempt from liability for negligence upon the ground that being one of the political subdivisions of the state of New York, it cannot be sued in tort, in the absence of express

statutory permission. This position is untenable. (1 R. S. 730, § 1; 1 Thomp. on Neg. 619; Dillon on Mun. Corp. [3d ed.] $$ 772, 974; S. & R. on Neg. $ 260; Beach on Pub. Corp. 745; Michael v. Bd. of Suprs., 39 Hun, 47; Thayer v. City of Boston, 19 Pick. 511; Akron v. McComb, 18 Ohio, 229; Rhodes v. Cleveland, 10 id. 159; Proprietors of Locks, etc., v. Lowell, 7 Gray, 223; Hildreth v. Lowell, 11 id. 345; Haskell v. City of New Bedford, 108 Mass. 208; May v. Logan Co., 30 Fed. Rep. 250; May v. Mercer Co., 30 id. 246; May v. County of Fond du Lac, 27 id. 691; Newman v. Bd. of Suprs., 45 N. Y. 676; Strough v. Bd. of Suprs., 119 id. 212.) Counties, while they may be exempt for omission to perform public duties imposed upon them as such by the state, are liable for the private wrongs they commit against others to the same extent as private corporations. The relation of master and servant existed between the defendant and plaintiff. (Ensign v. Bd. Suprs., 25 Hun, 20; Alamango v. Suprs., 25 id. 551; Hill v. City of Boston, 122 Mass. 358.) Where a county undertakes other matters than public functions of government, for its own advantage or emolument, or when special duties are imposed upon a county with its consent express or implied, or when a special authority is conferred upon it at its request, it loses its character as a public corporation, and it becomes liable. (1 Thomp. on Neg. 618; 1 S. & R. on Neg. $ 255-259; Wood on Mast. & Serv. 462; Maemilian v. Mayor, etc., 62 N. Y. 160; Bigelow v. Randolph, 14 Gray, 543; Jones v. New Haven, 34 Conn. 1; Perkins v. Lawrence, 136 Mass. 305; Hannon v. St. Louis Co., 62 Mo. 313; Bailey v. Mayor, 3 Hill, 531; Oliver v. Worcester, 102 Mass. 489; People v. Ingersoll, 58 N. Y. 29; Laws of 1874, chap. 446; Laws of 1865, chap. 342; Laws of 1842, chap. 132; Laws of 1863, chap. 82; Laws of 1891, chap. 335.) If managing an asylum for the pauper insane of Monroe county can be considered a public duty of the county, managing an asylum for the care of other insane patients certainly cannot be the duty of the county. (Laws of 1863, chap. 82, § 7; Neff v. Wellesley, 148 Mass. 493;

Oliver v. City of Worcester, 102 id. 489; Worden v. City of New Bedford, 131 id. 23; Tindley v. City of Salem, 137 id. 172; Eastman v. Meredith, 36 N. H. 285.) There is no ground for claiming that the warden of this asylum was an independent officer, over whom the defendant had no control. He was elected by its board of supervisors for a definite term and subject to removal by them for cause. His duties were, to some extent, prescribed by statute, but that is the case with the officers of all chartered municipal corporations. In this case the statute was really a special charter. He was the servant of the county and not of the state, and the defendant is certainly liable for his acts within the scope of his duties. (Dillon on Mun. Corp. [3d ed.] § 974; N. Y. & B. S. M. v. City of Brooklyn, 71 N. Y. 584; Appleton v. Water Comrs., 2 Hill, 433; Bailey v. Mayor, 3 id. 531.) There can be no question but that it was the duty of the defendant as master, to give suitable and proper instruction to the plaintiff as to the manner of doing her work. This duty could not be delegated so as to exempt the master from liability. For the omission to give proper instructions the defendant is liable. (Brennan v. Gordon, 118 N. Y. 489; 13 Daly, 208; Laws of 1890, chap. 398, § 12; Kingsley v. Pratt, 75 Hun, 323; Cobb v. Welcher, Id. 283; Hickey v. Tauffe, 105 N. Y. 26; Simpson v. N. Y. R. Co., 80 Hun, 415.)

F. E. Drake for respondent. The county of Monroe is not liable to an action by a private person to recover damages resulting from negligence, unless the action is given by statute. (Dillon on Mun. Corp. [4th ed.] § 963; Addison on Torts, 1298, § 1526; Maxmilian v. Mayor, etc., 62 N. Y. 160; Ensign v. Bd. Suprs., 25 Hun, 20; Alamango v. Bd. Suprs., 25 id. 551; Symonds v. Bd. Suprs., 71 Ill. 355; Hollenbeck v. Co. of Winnebago, 95 id. 355; Bd. of Comrs. v. Mighels, 7 Ohio, 109; Summers v. Bd. Comrs., 103 Ind. 262; Downing v. Mason Co., 87 Ky. 208; Dodsdall v. Co. of Olmstead, 30 Minn. 96; Brabham v. Suprs., 54 Miss. 363; Kincaid v. Hardin Co., 53 Iowa, 430; Sherbourne v. Yuba

Co., 21 Cal. 113; Barnett v. Co. of Contra Costa, 67 id. 77; Crowell v. Conoma Co., 25 id. 313; Reardon v. St. Louis Co., 36 Mo. 555; Pundman v. St. Charles Co., 110 id. 594; Western College v. City of Cleveland, 12 Ohio, 375; Ulrich v. City of St. Louis, 112 Mo. 138; Ham v. Mayor, etc., 70 N. Y. 459; Ogg v. City of Lansing, 35 Iowa, 495; Caldwell v. City of Boone, 51 id. 687; Blake v. City of Pontiac, 49 Ill. App. 543; Butrick v. City of Lowell, 1 Allen, 172; Wheeler v. City of Cincinnati, 19 Ohio St. 19; Brinkmeyer v. City of Evansville, 29 Ind. 187; Tooney v. City of Albany, 38 N. Y. S. R. 91, 92; Smith v. City of Rochester, 76 N. Y. 506; Hafford v. City of New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass. 87; Pettingel v. City of Chelsea, 161 id. 368; Howard v. City of Worcester, 153 id. 426; Finch v. Bd. of Education, 30 Ohio St. 37; Hill v. City of Boston, 122 Mass. 344; McKay v. City of Buffalo, 9 Hun, 401; 74 N. Y. 619; Givens v. City of Paris, 5 Tex. Civ. App. 705; Whelfield v. City of Paris, 84 Tex. 432; Curren v. City of Boston, 151. Mass. 505; Benton v. City Hospital, 140 id. 13; 1 R. S. chap. 20, tit. 3, §§ 1-4, 13; Laws of 1874, chap. 466, §§ 3, 13, 17; Laws of 1884, chap. 446, tit. 3, § 22; Id. tit. 4, § 4; Id. tit. 5, § 2; Id. tit. 6, § 3; Id. tit. 7, § 3; Laws of 1887, chap. 375, § 12; Laws of 1870, chaps. 633, 661; Laws of 1863, chap. 82, § 5; Bamber v. City of Rochester, 26 Hun, 587; People ex rel. v. Purdy, 126 N. Y. 679; Downs v. II. Hospital, 25 L. R. Ann. 602; McDonald v. M. G. Hospital, 129 Mass. 432; Murtaugh v. City of St. Louis, 44 Mo. 479.) There is no evidence of any negligence of the defendant, or of the officers in charge of the asylum from which plaintiff's injury resulted. (Hickey v. Taaffe, 105 N. Y. 26; Sweeney v. B. & J. E. Co., 101 id. 520; Harley v. B. C. M. Co., 142 id. 31; Sisco v. L. & II. R. R. Co., 145 id. 296; French v. Aulls, 72 Hun, 442; Pauley v. S. G. & L. Works, 131 N. Y. 90; Babcock v. F. R. R. Co., 140 id. 308; Marsh v. Chickering, 101 id. 396; Thomp. on Neg. 1009; Benfield v. V. O. Co., 75 Hun, 209.) The injury sus

Opinion of the Court, per BARTLETT, J.

[Vol. 147.

tained by plaintiff resulted from conditions, the risk of which

she entered into the employ(Hickey v. Taaffe, 105 N. Y.

was assumed by plaintiff when ment of operating the mangle. 26; Buckley v. G. P. & R. M. Co., 113 id. 540; Ogley v. Miles, 139 id. 458; Appel v. B., N. Y. & P. R. R. Co., 111 id. 550; Crown v. Orr, 140 id. 450; De Forest v. Jewett, 88 id. 264; Cowhill v. Roberts, 71 Hun, 127; French v. Aulls, 79 N. Y. 442.) Not only does plaintiff fail to show herself free from contributory negligence, but the facts tend strongly to show that the accident could have happened only through her own carelessness. (Babcock v. F. R. R. Co., 130 N. Y. 505.)

BARTLETT, J. The plaintiff appeals from an order, made on a motion heard at the General Term in the first instance, granting a new trial after verdict at the Monroe Circuit in her favor.

The plaintiff, an employee at the Monroe County Insane Asylum, was severely injured while operating a machine known as a steam mangle, which was used in the laundry.

At the trial it was insisted on behalf of the defendant that the county of Monroe was not liable in any event; that, assuming its liability, the plaintiff had failed to make out a cause of action.

As we are of opinion that the county of Monroe is not liable under the facts as disclosed in this record, it is unnecessary to determine whether the plaintiff was entitled to go to the jury.

The plaintiff was injured February 11, 1891. Before this action was commenced the County Law of 1892 was in force, but it is unnecessary to examine its provisions, as the status of the county of Monroe on the 11th day of February, 1891, must determine its liability.

Prior to the year 1863 the county of Monroe cared in part for its insane in a department of the county poorhouse. By chapter 82, Laws of 1863, it was enacted that the insane asylum of the county of Monroe should be a separate and dis