Donovan v. Board of Education — 46 N.Y. Super. Ct. 565

Majority

p. 565

THOMAS DONOVAN, an Infant, &c., Appellant, v. THE BOARD OF EDUCATION, &c., Respondent.

Before Speir and Freedman, JJ.

Decided May 3, 1880.

Headnote

Appeal by plaintiff from judgment dismissing complaint.

Thomas & Wilder, for appellant.

Wm. C. Whitney, attorney, and D. J. Dean, of counsel, for respondent.

The complaint avers injury sustained in November, 1875, by the plaintiff falling into a grating left open for the purpose of hoisting materials from the cellar in the yard of a public school building

p. 566

in the city of New York, in consequence of the negligence of defendant’s servants.

The answer denies the foregoing allegations.

The testimony does not connect the defendant with the repairs, custody or control of the premisés or the work which was going on when the accident occurred.

The Board of Education was not the employer or responsible superior of the persons by whose negligence the accident occurred. The case presents the facts as proven, which show that the negligent act was not a corporate or official act, or omission of a servant necessarily employed by it.

The complaint was properly dismissed, and the judgment should be affirmed, with costs.