APPEALS from an order of the County Court of Onondaga County, entered May 20, 1953, which (1) affirmed a judgment of the Municipal Court of the City of Syracuse (ABELSON, J.), insofar as it was in favor of plaintiff and against defendant County of Onondaga and (2) reversed the judgment insofar as it dismissed the complaint against defendant City of Syracuse. The County Court also directed that the judgment be entered against defendants city and county jointly.
George R. Driscoll, Corporation Counsel (Robert J. Cooney of counsel), for City of Syracuse, appellant.
Julian W. Edgcomb, County Attorney (Eli Gingold of counsel), for County of Onondaga, appellant.
Philip C. Wood for respondent.
One De Pasquale, having been trapped in the commission of a burglary by City of Syracuse police officers, attempted to escape and was shot and seriously wounded by one of the officers. Shortly thereafter he was taken by the city police to the plaintiff hospital, where he received care and attention for several weeks. During the time the prisoner was in the hospital the City of Syracuse police maintained a twenty-four-hour guard over him. After his discharge De Pasquale was indicted and later sentenced to prison upon conviction for the felony.
The day following the prisoner's admission to the hospital, an agent of the hospital talked on the telephone with the Onondaga County District Attorney for the purpose of seeking authorization for extra or special nursing care for the patient. The hospital authorities knew that the District Attorney was at that time in possession of moneys purportedly belonging to the prisoner, and this fact was prominent in the conversation testified to by plaintiff's witness and undenied by the defendant county. As a result of this conversation, extra nurses were assigned to the case. The moneys later having been disposed of elsewhere (pursuant to a judgment of the City of Syracuse Municipal Court), the plaintiff hospital has received no part thereof.
This action resulted. It was brought against both the City of Syracuse and County of Onondaga to recover the expenses incurred in the treatment of De Pasquale rendered at the defendants' alleged request. The Municipal Court of the City of Syracuse granted judgment against the county and dismissed the complaint as against the city. On appeal to the Onondaga County Court judgment was ordered against both defendants jointly. From this order both defendants appeal.
It is difficult to understand how the defendant city can avoid liability. The services having been rendered De Pasquale at the instance and request of authorized agents of the city, an implied contract to pay for these services arose if there was a legal duty upon the city to provide the attention. (Crane v. Baudouine, 55 N.Y. 256; McGuire v. Hughes, 207 N.Y. 516.) The liability follows the duty. There seems to be no question
of the latter ( Eddy v. Village of Ellicottville, 35 A.D. 256; Dunham v. Village of Canisteo, 303 N.Y. 498), and we find the judgment against the City of Syracuse was proper.
Not so, however, in regard to the County of Onondaga. The action being predicated upon an implied contract, there must have been a request of the defendant for the services or, at least, an authorization thereof. We find no evidence of any contract, express or implied. Nor do we attempt to decide what right or liabilities, if any, there may be as between the defendants.
It is conceded that the defendant county never had custody of the prisoner before or during his stay in the hospital and no evidence other than the telephone conversation mentioned above was offered to implicate the county in any way. Although we do not decide the question, it may be that the District Attorney had the authority to incur expenses such as the subject charges, and to bind the county therefor (former County Law, § 240, subd. 2, in effect when these services were rendered; People ex rel. Gardenier v. Board of Supervisors,134 N.Y. 1; People ex rel. Koetteritz v. Board of Supervisors,148 A.D. 392). However, the evidence here fails to demonstrate that authority, if any, was exercised. We do not read the record before us as indicating that the District Attorney agreed to pledge general county funds to the payment of De Pasquale's medical bills. Rather, he acknowledged that he had in his office money which belonged to the prisoner and stated that it might be used to pay the extra nurses. So far as appears, the District Attorney's conversation with the hospital representative concerned ...