Massimilian v. Board of Education

Dowling, J.

(dissenting). I cannot see any essential distinction between the provisions of section 50-d of article 4 of the General Municipal Law and section 569-a of article 20 of the Education Law so far as giving a new remedy against the municipality or board of education for injuries suffered by an innocent third party is concerned. Under section 50-d a new remedy has been afforded. (Derlicka v. Leo, 281 N. Y. 266, 268.) Distinction is sought to be made on the theory that the municipality under section 50-d has assumed liability, while under section 569-a the board of education is merely required “ to save harmless and protect ” the teacher in case he has been compelled to pay anything to a pupil who has been injured through his negligence. I think section 569-a gives to the pupil, who has been injured by the negligence of bis teacher, a new remedy against the board of education to recover for the damages suffered regardless of the teacher’s ability to pay. The obligation of the municipality under section 50-d is merely “ to save him [the physician or dentist] harmless ” from financial loss. In other words, under section 50-d, there is no general assumption of liability upon the part of the municipality for the malpractice of physicians and dentists who may treat inmates of public institutions. Under section 569-a, the board of education is required “ to save harmless and protect all teachers * * * from financial loss.” I think the expression “ to save harmless and protect ” should be construed to mean to assume liability so far as to save harmless all teachers, etc. The object of both sections is to give the third party a new remedy directly against the municipality or the board of education as the case may bei The order should be affirmed.

Order reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs.