"On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct."

The power of an appellate court upon the hearing of an appeal is defined in section 543 of the Code of Criminal Procedure: (1) It may reverse the judgment. (2) On reversal, it may order a new trial. (3) It may correct the judgment, when erroneous, to conform to the judgment of finding. (4) It may reduce the sentence imposed. (5) It may affirm. (6) If the affirmance is of a judgment of death, it must fix the week during which "the original sentence * * shall be executed." We are concerned here only with that part of section 546 which provides that:

"On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may di

rect."

In the interpretation of that clause the powers of an appellate court to reverse, to grant a new trial, to correct or modify a judgment, are without interest, since the clause deals only with a simple affirmance of the original judgment. What is the signifi. cance of the provision that the execution of an original judgment shall be "as the appellate court may direct?" When will an appellate court in affirming an original judgment find need to give directions as to its execution? Section 546, in prescribing the duties and powers of an appellate court, provides for directions to be given by it, upon affirmance, in one instance only, viz., the instance of an affirmance of a judgment of death. In that event, it must give directions as to the date of execution of the original sentence. No other instance where directions are required now occurs to us. Is it to be understood, then, that section 546 has application only in a case of an affirmance of a death sentence? If so, why did not the Legislature provide in simple language merely this; i. e., that when a death sentence is affirmed it

must be executed as directed by the order of affirmance? It did not do so. It provided generally that "on a judgment of affirmance" (in any case whatsoever) the original judg ment "must" be carried into execution "as the appellate court may direct." Clearly, it is the meaning of the clause that the judgment "must" be executed as originally pronounced, unless in a proper case, a death case, the appellate court gives necessary directions, in which case execution "must" be had as directed. If that be the meaning of

the clause, its enactment might well have been omitted, unless the effect intended was that an original judgment, after affirmance, should no longer be subject to the exercise of a power of suspension, and that its execution must absolutely follow. For, without the enactment, the original judgment, except for a suspension, authorized or unauthorized, would after affirmance in any event be executed. We think that the clause applies in this instance, and that, even though the power of suspension was retained by the County Court up to the moment of the affirmance of the judgment, it then ceased, and thereafter the original sentence was required to be executed. Any other conclusion would bring our criminal procedure into disrepute. There might otherwise be presented to view the spectacle of a convict escaping imprisonment through the order of a trial judge, granted after a determination by the highest court in the state that he had justly been sentenced, and deserved the sentence of imprisonment which had been inflicted. That result would be intolerable and should not now be sanctioned by our decision.

For all these reasons, the order should be reversed and a peremptory order of mandamus should be granted.

CARDOZÓ, C. J., and POUND, LEHMAN, and O'BRIEN, JJ., concur in per curiam opinion for affirmance.

CRANE and KELLOGG, JJ., dissent in opinions.

ANDREWS, J., dissents.

Order affirmed.

(247 N. Y. 503)

LESSIN v. BOARD OF EDUCATION OF CITY OF NEW YORK et al. (two cases). Court of Appeals of New York. March 27, 1928.

1. Negligence 136 (29)-Eight year old boy held not contributorily negligent as matter of law in running in play on elevator platform. nearly level with sidewalk.

Eight year old boy, playing tag in front of high school, held not guilty of contributory negligence as matter of law in running on platform of elevator nearly level with sidewalk, and which gave way, precipitating him into elevator shaft or hoistway, where there was nothing to warn him plainly of danger.

3. Schools and school districts 72-New York City board of education has charge and control of high school building and appurte

nances.

Board of education of city of New York has charge and control of high school building and its appurtenances.

4. Municipal corporations

808(1)-Both city and abutting owner may be liable for injuries caused by dereliction in duty owing person using sidewalk.

Where both city and abutting owner knew that public used whole sidewalk, part of which extended beyond building line, each may be liable for injuries caused by dereliction on its part in any duty owed to person using sidewalk, since abutting owner may not render street unsafe for public, even by acts done on private property. 5. Municipal corporations 785-Recovery could not be had for boy's fall from sidewalk into elevator shaft, on ground shaft opening

was nuisance.

Recovery may not be had for injury to eight year old boy, who fell into elevator shaft from sidewalk, on ground that opening of shaft was nuisance, in that it was not constructed in ac

9. Schools and school districts 72-Duty of board. of education to control school buildings is corporate duty, for dereliction in discharge of which there is corporate responsibility (Greater New York Charter, § 1055; Education Law, § 868, subd. 3).

Duty of board of education of city of New York, under Greater New York Charter (Laws 1901, c. 466) § 1055, and Education Law (Consol. Laws, c. 16) § 868, subd. 3, to control and care for school buildings, is corporate duty, for dereliction in discharge of which there is corporate responsibility.

10. Municipal corporations 211-New York City board of education is "governmental agency," not exempt from responsibility for dereliction in discharge of corporate duty.

Board of education of city of New York is governmental agency, not civil division of state, and is not exempt from responsibility for dereliction in discharge of corporate duty.

11. Schools and school districts 89-New York City board of education is responsible for agent's failure properly to discharge functions of caring for school buildings.

Where employees of board of education of

6. Schools and school districts 89-Employees of board of education, knowing that elevator constituted danger to persons using sidewalk, must exercise "reasonable care" to remove danger.

Where employees of board of education had notice that, until elevator was repaired, it constituted danger to persons using sidewalk, it was their duty to exercise "reasonable care" to remove danger, and "reasonable care" must be commensurate with danger that threatens.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reasonable Care.]

7. Schools and school districts

121-In ac

tion for injuries to boy falling into elevator shaft from sidewalk by school, evidence held to justify finding that employees of board of education did not exercise "reasonable care" to remove danger.

In action for injury to eight year old boy, who fell into elevator shaft from sidewalk by high school, evidence held to warrant jury in finding that employees of board of education, who had notice that elevator, until repaired, constituted danger to persons using sidewalk, did not exercise "reasonable care" to remove danger.

8. Schools and school districts 72, 73-Duty of board of education to control and care for school building cannot be delegated (Greater New York Charter, § 1055; Education Law, § 868, subd. 3).

Duty imposed on board of education of city of New York under Greater New York Charter (Laws 1901, c. 466) § 1055, and Education Law (Consol. Laws, c. 16) § 868, subd. 3, to control and care for school buildings, may not be delegated to another.

161 N.E.-11

functions assumed by board of caring for school buildings, board is responsible for such failure, aside from any rule of agency, since board itself has in such case failed to perform duty imposed on it by law.

Appeal from Supreme Court, Appellate Division, First Department.

Actions by Alexander Lessin, an infant, by Markus Lessin, against the Board of EducaMarkus Lessin, his guardian ad litem, and by tion of the City of New York and the City of New York. From a judgment of the Appellate Division, First Department (222 App. Div. 667, 225 N. Y. S. 856), affirming judgment in favor of plaintiffs and dismissing complaint as to defendant City of New York, plaintiffs and defendant Board of Education of the City of New York appeal. Affirmed.

Leonard F. Fish, all of New York City, for Samuel Lesser, Thomas J. O'Neill and plaintiffs.

George P. Nicholson, Corp. Counsel, of New York City (J. Joseph Lilly, Henry J. Shields, Abraham Greenwald and Charles C. Marrin, all of New York City, of counsel), for defendants.

LEHMAN, J. The infant plaintiff, a boy about eight years old, played tag with some small companions on the sidewalk in front of the Morris High School in the city of New York. In the course of the game he ran upon the platform of an elevator or hoist, which was used to bring coal and other materials into the cellar of the school building and tc remove ashes and waste from the cellar. The platform was level with the street, or nearly SO. As the boy stepped upon it, one end of the platform gave way, and the boy was precipitated into the elevator shaft or hoistway. He sustained grievous injuries. For the consequent damages liability is asserted against the city of New York and the board of education.

[1] At the place where the children were playing, the sidewalk is unusually wide. The school building is set back several feet from the building line, and the sidewalk extends, without any line of demarcation, to the wall of the building. The opening of the elevator shaft or hoistway in the sidewalk is within the building line, but the whole sidewalk is open to the traveling public and is used by it. The children were lawfully playing upon the sidewalk, even though the sidewalk extended beyond the street line. It may not be said that this boy of eight was guilty of contributory negligence as a matter of law in running in play upon the platform of the elevator, if there was nothing to warn him plainly of danger. Though the danger was due to conditions which existed, not upon the public street itself, but upon abutting property it was a danger to which those using the street were subjected.

[2-4] The city of New York has charge and control of the public streets. Towards those using the streets, it rests under a duty of reasonable care to keep the streets reasonably safe. The board of education had charge and control of the school building and its appurtenances. An abutting owner may not render the street unsafe for the public, even by acts done on private property. Both the city and the abutting owner knew that the public used the whole sidewalk. In the absence of some special rule of exemption of liability, each may be held responsible for injuries caused by dereliction on its part in any duty it owed to a person so using the sidewalk. Klepper v. Seymour House Corporation of Ogdens burg, 246 N. Y. 85, 158 N. E. 29.

[5] The complaint charges that the defendants were guilty of both nuisance and negligence. It is said that the opening of the ele vator shaft was not constructed in accordance with section 148, article 13, chapter 23, of the Code of Ordinances of the City of New York, and therefore constituted a nuisance

regardless of the manner in which it was maintained.

The provisions of the section of the ordinances upon which the plaintiffs rely apply only to obstructions and incumbrances in the city streets and are not intended to render unlawful openings otherwise constructed in the sidewalk within the building line on abutting property, if such openings are constructed in a reasonably safe manner, in accordance with plans approved by the city. In the present case there is nothing in the evidence which suggests that the original construction of the elevator and elevator shaft was not reasonably safe. Liability, if any, must be predicated upon proof that the defendants have been guilty of negligence in the maintenance of the opening. The trial court held that such proof failed to establish wrong by the city and dismissed the complaint against it. The jury has found that the evidence establishes negligence on the part of the board of education.

[6, 7] The accident occurred at 2 o'clock in the afternoon. At about 10 o'clock in the morning of the same day, the "custodian engineer" of the Morris High School and the supervisor or superintendent of maintenance of machinery and apparatus of public schools in the borough of the Bronx, who happened to be in the school building in the course of his duties, were informed that, while the elevator was being used for the delivery of coal, the platform had become stuck when a few inches above the sidewalk. It could not be lowered. A chain at one corner of the platform was broken or had become loosened from the platform. Directions were given to a contractor to repair the elevator. At that time the employees of the board of education had notice that, until the elevator was repaired, it constituted a danger to any person, using the sidewalk, who might step upon it. It was their duty to exercise reasonable care to remove the danger, and reasonable care should be commensurate with the danger that threatens. Here the jury might find that the care exercised did not measure up to this standard. There is testimony that the folding doors, which ordinarily covered the shaft opening when the elevator was not in use, were placed in an upright position and held erect by a bar across the top, and that empty ash cans were ranged in front between these doors. The accident occurred at least three hours thereafter. During the interval the employees of the board of education paid no further attention to the elevator. They were satisfied that the precautions they had taken were sufficient. At the time of the accident, and perhaps, for some hours before, the folding doors

lay open, flat against the sidewalk, and there were no ash cans in front of the elevator which was then level with the sidewalk. The precautions taken proved insufficient, and the evidence supports the finding that the employees of the board of education in the exercise of reasonable care should have anticipated that they might prove insufficient.

[8, 9] The board of education maintains that, even assuming that its employees have been negligent, as an agency of the state performing a governmental function it is not responsible for the negligence of its employees or agents. The property of the city of New York is "under the care and control of the board of education." Greater New York Charter (Laws 1901, c. 466) § 1055. The board of education has assumed performance of the function and duty to control and care for the school building imposed upon it under the charter and under section 868, subdivision 3, of the Education Law (Consol. Laws, c. 16). Duties so imposed and assumed may not be delegated to another. They are corporate duties, and for dereliction in the discharge of such duties there is a corporate responsibility. Herman v. Board of Education of Union School Dist. No. 8, Town of Arcadia, Wayne County, 234 N. Y. 196, 137 N. E. 24, 24 A. L. R. 1065; Wahrman v. Board of Education of City of New York, 187 N. Y. 331, 80 N. E. 192, 116 Am. St. Rep. 609, 10 Ann. Cas.

405.

[10] The board of education is a governmental agency, not a civil division, of the state. Herman v. Board of Education of Union School Dist. No. 8, Town of Arcadia, Wayne County, supra. Even where the rule is maintained that civil divisions of the state, when engaged as delegates of the state in the discharge of governmental functions are not liable for the torts of their agents and contractors, the rule has not been extended to exempt a governmental agent from liability for his own dereliction. The state has created the board of education as a corporate agent to discharge governmental functions. No exemption from responsibility for dereliction in the discharge of a corporate duty has been granted. The responsibility of the individual agents and officers of the state for their own derelictions has been transformed into a corporate liability. Bassett v. Fish, 75 N. Y. 303.

Some duties imposed upon the board of education may be carried out by the board without the intervention of any agent. It must provide for the instruction of the school children. It appoints teachers for that purpose. Its duty is then performed. It does not itself teach, and the teachers are not the agents of the board. For that reason the

board of education may not be held liable for negligence of a teacher in the giving of instruction or in the use of materials furnished by the board. Johnson v. Board of Education of City of Hudson, 210 App. Div. 723, 206 N. Y. S. 610; Katterschinsky v. Board of Education of City of New York, 215 App. Div. 695, 212 N. Y. S. 424.

[11] The duty of caring for school buildings is, by its nature, a continuing duty which is imposed directly upon the board of education. The members of the board cannot discharge that duty collectively without the intervention of agents or employees, but the duty of the board is not complete when it ap points such agents or employees. It acts through them. If they fail to discharge prop erly the functions assumed by the board, the board is responsible for such failure, aside from any rule of agency. The board itself has in such case failed to perform a duty imposed upon it by law, and liability may be predicated upon its own wrong. Herman v. Board of Education of Union School Dist. No. 8, Town of Arcadia, Wayne County, supra; Jaked v. Board of Education of City of Albany, 198 App. Div. 113, 189 N. Y. S. 697, affirmed, 234 N. Y. 591, 138 N. E. 458.

A danger to the public using the street existed upon abutting property in the control of the board of education. As soon as that

danger became known to it, or should have

been discovered in the exercise of reasonable care, the duty to warn or guard the public against it arose. Because of the negligence of the employees of the board, that duty was not properly performed. Even if we assume that the board of education acting as a governmental agency is not responsible for the negligence of its agents, such negligence cannot excuse the resultant failure of the board to discharge the duty imposed upon it by law. The board remains liable for the proper performance of its duty, even though it intrusts performance to an appointee, at least to the same extent as if it arranged that such duties should be performed by an independent contractor.

[12] It is said that if liability is imposed upon the board of education for its own dereliction and not, under the rule of respondeat superior, for the negligence of its employees, notice of the existence of the danger given to the employees of the board may not be regarded as notice to the board. That does not follow. The board intrusted, as it was bound to do, the care of the building to its employees. It acted and could act, only through them. Except by notice to such employees it could hardly obtain knowledge of the existence of any defect in a building under its care, or any danger which called for vigilance on its part. It was derelict when it

failed to take appropriate action upon the knowledge so obtained.

The record does not show that any employee or officer of the city intrusted with the care of the streets had any actual notice that the elevator was defective or constituted a danger to the public. It is not clear under all the circumstances that in the exercise of reasonable care by any of them such a danger should have been discovered. At the trial, liability against the city was urged rather upon the theory of nuisance than of negligence. We find that there was no error in dismissing the complaint against the city.

The judgment in each action should be affirmed, with costs to the plaintiff against the board of education.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, and KELLOGG, JJ., concur. O'BRIEN, J., not sitting.

Judgments affirmed, etc.

(247 N. Y. 513)

PER CURIAM. Joseph Ziolkowski was employed to operate an electric crane used in the yards of a foundry of the American Radiator Company. His duties required him to sit upon an iron stool in the cab of the crane. The cab was small, Ziolkowski's hours of work began at 5 o'clock in the afternoon. They continued ordinarily till the early morning hours. The night of January 27, 1927, was cold-it is said the coldest night of the winter. The cab was unheated. At 11 o'clock that night the foreman passed the cab where Ziolkowski was working and called to him: "How is everything?" kowski answered: "Pretty cold, but I think I can stick it out." Two hours thereafter, while Ziolkowski was still in the cab of the crane, his clothes caught fire. Two pails of hot coal were at that time in the small cab.

Ziol

The Industrial Commission has found that Ziolkowski's clothing caught fire from the contents of the pails. Ziolkowski died the same day as a result of burns.

The crane was operated by electricity. The pails of hot coal in the cab had been

CO. et al.

the operator warm. They were placed there

1928.

Master and servant 375(1)-Death of crane operator from clothes catching fire from live coals used in cab to keep warm held to arise in course of employment.

Death of electric crane operator who worked from 5 o'clock in the afternoon until early morning hours in a crane in the yards of a foundry, and who took into his cab, on a cold night, pails of live coals to keep warm, resulting in clothes catching fire and death being caused by burns, held to have arisen in course of his employment; risk being directly connected with work and a natural consequence thereof.

knowledge of the employer. Doubtless they were so placed by the operator for his own comfort while working. An award to the dependents of the deceased employee has been reversed, and their claim dismissed, on the ground that the injury did not arise out of the employment, and as a natural incident to the work.

It is natural for a workman exposed to the discomfort of great cold to try to keep himself warm. The method adopted by the employee here created a dangerous situation for him in the close confinement of the small cab. His act may have been negligent; it

Proceedings under the Workmen's Compensation Law by Mary Ziolkowski, a widow, on behalf of herself and infant children, for the death of Joseph Ziolkowski, her husband, claimant, opposed by the American Radiator Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. An award by the State Industrial Board was reversed and the claim dismissed by the Supreme Court, Appellate Division (222 App. Div. 708, 224 N. Y. S. 912), and the State Industrial Board appeals. Order of Appellate Division reversed, and award of State Industrial Board affirmed.

Albert Ottinger, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for appellant. Clarence B. Tippett, of New York City, for respondents.

employment. He sought to relieve himself, while his employment continued, from the discomfort of extraordinary cold to which his employment exposed him that night. His efforts were the natural result of the conditions created by the employment. The risk was not only directly connected with the work, but it was a natural consequence of the work.

The order of the Appellate Division should be reversed and the award of the State Industrial Board affirmed, with costs in the Appellate Division and in this court.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

Ordered accordingly.