The opinion
Beldock, P. J.
(dissenting). The fellow-servant doctrine does not apply to a case like the present, where by statute (Court of Claims Act, § 8; General Municipal Law, § 50-a) the city is concededly liable for the negligent operation of the police car by its driver, policeman Budris.
On exactly the same facts, i.e., where a policeman was injured or killed while he was a passenger in a police oar operated by a fellow policeman on official business, the city was held liable in Wiseman v. City of New York (10 N Y 2d 952) and Robinson v. City of Albany (14 A D 2d 626).
The judgment should be affirmed. The appeal from the intermediate order should be dismissed as academic.
In City of Albany v. Standard Acc. Ins. Co. (7 N Y 2d 422, 430) the court held specifically that it was not concerned with the liability of the city in the negligence action but solely with the liability of the insurance company under a contract of insurance. In the negligence action arising out of the very accident involved in City of Albany v. Standard Acc. Ins. Co. (supra), the city was held liable, even though plaintiff’s intestate was a policeman passenger in the negligently operated police car (see Robinson v. City of Albany, supra). To the same effect, see Ottman v. Village of Rockville Centre ( 275 N. Y. 270 , 273 N. Y. 205 ), where a fireman was killed when the fire truck on which he was riding Was negligently operated by a fellow, fireman. In that case the only reason for the village’s exoneration from liability was that the statute imposing liability upon the village for the negligent operation of the fire truck became effective after the cause of action arose.