# Duren v. City of Binghamton > Appellate Division of the Supreme Court of the State of New York · March 6, 1940 · 258 A.D. 694 URL: https://www.frixlaw.com/law-library/cases/5360664 ## Case - **Full name:** Mae Duren v. City of Binghamton, New York - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** March 6, 1940 - **Citations:** 258 A.D. 694; 18 N.Y.S.2d 518; 1940 N.Y. App. Div. LEXIS 8274 - **Precedential status:** Published - **Opinion:** Dissent by Bliss - **Judges:** Bliss, Heffernan, Hill - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5360664 ## Opinion text Bliss, J. (dissenting). The respondent has recovered a judgment for personal injuries arising out of the negligence of the appellant’s employees. The director of procurement of the Treasury Department of, the United States leased to the city of Binghamton and county of Broome through their respective commissioners of welfare, the old post office annex at Binghamton. The city and county paid twenty-five dollars per month rent and it was specified that the building was to be used for relief purposes. Thereafter the city and county departments of welfare used the building as a warehouse and distribution depot for commodities to be given to the poor, delivered to them by agents of the Federal government from time to time. The employees of the welfare departments of the city and county were in charge of the storage and distribution. The Works Progress Administration, an agency of the Federal government, was engaged in the operation of a sewing project in the city for the purpose of providing work for women on relief. Without charge, the city permitted this agency to conduct the project in the northerly half of the old post office annex building. The city also provided light, heat, insurance and certain materials for the project while the Federal agency employed and paid the workers, all of whom, as a requisite to employment, had to be on relief. The southerly half of the building was retained by the city and county welfare departments and continued to be used for the storage of surplus commodities. The toilet and drinking water facilities were in the southerly half of the building and those employed on the sewing project passed across the southerly half of the building to these facilities. An employee of the city welfare department was in charge and supervised the storage of these commodities. Under his direction barrels of powdered milk weighing 200 pounds each had been piled in two tiers along the side of the passageway. On August 12, 1938, the respondent was employed by the Works Progress Administration on its sewing project. While on her way to get a drink she passed between the barrels of powdered milk and one of them fell on her, causing serious personal injuries. On the question of negligence, the record amply sustains the findings of the jury in her favor. The barrels were stacked unevenly, those on top protruded over the bottom tier, were “ wobbly ” and not safely piled. . The more serious difficulty in so far as the respondent is concerned, is the contention by the city that its occupation and use of this building and the acts of its employees in storing and maintaining the commodities along the passageway were a governmental function and that it cannot be held liable for any negligence of its *698 employees while so engaged. The . trial court held that the relation of the city to the Works Progress Administration was that of a landlord to a tenant, that it was engaged in a proprietary and not a governmental function and, therefore, not immune from the result of negligence on the part of its employees. So much has been written on the subject of governmental and proprietary functions of a municipality that those phases of the law need no discussion here. It is firmly established that the administration of public charities is a public duty which is governmental in character and in the performance of which a municipal corporation is absolved from liability for the negligence of its agents. (Maxmilian v. Mayor, 62 N. Y. 160 ; Augustine v. Town of Brant, 249 id. 198 ; Ottmann v. Village of Rockville Centre, 275 id. 270 .) While this rule is an anachronism and lacks appeal today, it is still the law in our jurisdiction. If it is to be abandoned it should be by forthright legislative action or judicial overruling and not by the attrition of artificial exceptions. This entire building was being used for the administration of public relief. The sewing was a relief project and any part had by the city in that project was an incident to the general administration of public relief in the city. The employees of the city who piled up and had charge of the barrels which fell on the plaintiff, were employees of the welfare department of the city. The passageway which plaintiff was using was in charge of and being maintained by the employees of the city welfare department. The plaintiff’s presence in the building and in the passageway was as a recipient of public relief. No activities other than those of the administration of public relief were maintained or carried on by the city in this building. Its use was limited by the lease to relief purposes. The welfare commissioner of the city leased and used the building for relief purposes only. The city was not engaged as a landlord in the use and maintenance of this building or acting in a proprietary manner. The only purpose of occupancy was. the administering of public relief and the acts of its agents which resulted in respondent’s injuries were all incidental to and a part of the performance of its duties in this regard. (Wilcox v. City of Rochester, 190 N. Y. 137 .) i The judgment should be reversed and the complaint dismissed, with costs. Foster, J., concurs. Judgment and order affirmed, with costs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5360664. Public record. Not legal advice.