App. Div.] Second Department, April, 1909. for this court in this department, in Matter of Robinson (supra); "We think the Holden case is authority for the general proposition that no allowances can be made for counsel in a litigation beyond taxable costs (which would include any extra allowance authorized by sections 3252 and 3253 of the Code of Civil Procedure), except in the case of trustees who represent the fund, or of one who has recovered the fund for the benefit of himself and others." Of course, the power to allow the guardian ad litem compensation, payable out of the interest of the infant, is undoubted, and we do not decide whether an additional allowance, under section 3253 of the Code, was justified. The judgment, so far as appealed from, should be reversed, and the case remitted to the Special Term. HIRSCHBERG, P. J., GAYNOR, BURR and RICH, JJ., concurred. Judgment in so far as appealed from reversed, without costs, and case remitted to the Special Term. JOSEPH WALLACE, an Infant, by JOHN J. WALLACE, IIis Guardian ad Litem, Respondent, v. JOHN A. CASEY COMPANY, Appellant. Second Department, April 23, 1909. Negligence-injury to applicant for charity by act of donor's servant erroneous charge as to admissions - infants when chargeable with negligence of parents and custodians. In an action by an infant who was struck by a barrel thrown from the window of the defendant's factory by an employee who was allowed to give barrels away to be used as fire wood by poor persons applying therefor, it is reversible error to charge that an admission by the defendant's superintendent that workmen were allowed to throw barrels to persons calling for them is binding upon the defendant when no such admission was made. The fact that the superintendent testified that employees were allowed to give away barrels to poor persons is not an admission that they were allowed to throw them from the window. It seems, moreover, that had such admission been made it would not have been binding upon the defendant. A mother is negligent in allowing a three-year-old child to wander unattended six blocks from home in the absence of explanation, and her negligence may be imputed to the child. Second Department, April, 1909. [Vol. 132. Where an infant three years old was injured as aforesaid while accompanying a boy twelve years of age who was sent for the barrel, he cannot be deemed a mere passer-by on the street so as to put him beyond a charge of contributory negligence. It seems, that where in such action it appears that the plaintiff was intrusted to the custody of the elder boy who was negligent in allowing the infant to get in the way when knowing that the barrel was to be dropped from above, his negligence is chargeable to the plaintiff. Where the defendant's servants were forbidden to take pay for barrels given away to poor persons for fire wood, so that the purpose of the defendant was purely charitable, he is not liable for injuries received by an infant who was allowed to accompany an older boy sent for the barrel, although the servant who dropped the barrel from an upper window be deemed to have been acting for the master. This, because under the circumstances, the recipient of the charity assumes the risk of negligence of the donor's servant. Theory of the rule respondeat superior discussed per MILLEP, J. JENKS, J., dissented in part, with memorandum. APPEAL by the defendant, John A. Casey Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of April, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 29th day of April, 1908, denying the defendant's motion for a new trial made upon the minutes. The action is for negligence. It appeared that the plaintiff accompanied his uncle, a lad twelve years of age, who was sent by the plaintiff's mother from their home to the defendant's factory, a distance of six blocks, for firewood; that the uncle gave the defendant's employee, Murtha, a nickel to get a barrel for him from the loft of a shed abutting upon the street, and that Murtha threw or dropped from the window of the loft an empty barrel which fell against the plaintiff, then but three years of age, inflicting a serious injury. The uncle testified that he did not know that the plaintiff had followed him or was present until the accident happened. The plaintiff's mother was not called as a witness, and he offered no evidence to show what care was exercised by her as his custodian, or how he came to be allowed to accompany or follow his uncle. It appeared that it was customary for the poor people in the neighborhood of the defendant's factory to gather firewood, empty rosin barrels, from the factory yard; and that sometimes the workmen App. Div.] Second Department, April, 1909. helped them to get barrels from the loft of the shed. There was nothing to show that the defendant adopted that method to get rid of the barrels; the evidence indicates that they were of value; the workmen were forbidden to take pay for them; the money paid appears to have been given the servant for his own; and the case went to the jury on the theory that, so far as the defendant was concerned, the act was purely charitable. The defendant's evidence tended to show that the accident did not happen on its premises, or that, if it did, it was during the noon hour, and that Murtha was induced by the payment of five cents to return to the loft, after he had quit work, and to throw out the barrel. The court submitted three questions to the jury, viz.: (1) Did the accident happen as claimed by the plaintiff; (2) was Murtha's act in throwing out the barrel done within the line of his employment and the scope of his authority; (3) did the mother's negligence in allowing him to go unattended contribute to the accident. In respect to the latter proposition, the court charged the jury that the mother was negligent, but that such negligence would not defeat a recovery in case the accident would have happened just the same had the plaintiff been attended by a suitable person. A motion to dismiss was made at the close of the evidence on the grounds, inter alia, that Murtha's act was not done in the line or scope of his duty and that it was negligent in law for the plaintiff to be where he was, unattended. At the close of the charge, the plaintiff's counsel requested the charge that "the admission of the superintendent that workmen were allowed to throw barrels out to persons calling for them is an admission of the defendant," to which the court replied, "He in that respect stood for the defendant. I charge that." The superintendent had made no such admission. John C. McGuire [E. J. Connolly with him on the brief], for the appellant. William W. Wingate [Andrew F. Van Thun, Jr., with him on the brief], for the respondent. MILLER, J.: The exception to the charge that the admission of the superintendent was an admission of the defendant presents reversible error Second Department, April, 1909. [Vol. 132. because, first, the superintendent had not made it, and, second, if he had it was not the admission of the defendant- a proposition which I need not discuss. The error was harmful. The superintendent had testified that the men were allowed to give away the barrels to poor people, a very different thing from being allowed to throw them out of the window into the street. Upon the most favorable view of this case to the plaintiff it was a question of fact whether Murtha's wrong was committed in the course of his employment as such. The jury must have understood from the charge, excepted to, that he was in fact authorized by the master to do the negligent thing complained of. But we should not send this case back for a new trial without deciding the main question presented by the record before us, lest a wrong inference be drawn. The point is raised, but none too plainly, by the motion to dismiss. In the absence of explanation, it would seem plain, as the court charged the jury, that the mother was negligent in allowing a threeyear-old child to wander unattended six blocks from home; but the court submitted the case to the jury on the theory, not excepted to, that the plaintiff was a passer-by in the street and that, as he would not have been chargeable with negligence if he had been an adult, the mother's negligence was not to be imputed to him. But he was not merely a passer-by in the street; he was, in fact, at the place of the accident because of the errand of the older lad, and was waiting for that errand to be done. Had he arrived at years of discretion, he would have known that Murtha was about to drop the barrel from the window and would have been negligent in getting in the way of it. Hence it would seem to be plain that, upon the theory that the plaintiff was unattended, the mother's negligence was to be imputed to him. However, I do not credit the statement of the older boy that he did not know that the plaintiff was with him, until the latter was hurt. It seems to me that the more rational view to take of the evidence is that the plaintiff was intrusted to the custody of the older boy, in which case the latter's negligence is to be imputed to him. (IIennessey v. Brooklyn City R. R. Co., 6 App. Div. 206; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Lannen v. Albany Gas Light Co., 44 id. 459.) It is difficult to escape the conclusion that the older boy, knowing App. Div.] Second Department, April, 1909. that the barrel was to be dropped from the loft, was negligent for allowing the plaintiff to get in the way of it; and there is certainly more reason to impute the negligence of the custodian immediately contributing to the accident than the more remote negligence of the parent in allowing the child to go unattended. It is true that that view was not submitted to the jury and is not presented to us by an exception. I refer to it to show that the negligence, either of the mother or of the immediate custodian, is to be imputed to the plaintiff, and that he was identified with the errand resulting in his injury and with those receiving the charity. He was not an outsider a mere passer-by in the street. While the doctrine of identification, as broadly applied to the question of imputed negligence in Thorogood v. Bryan (8 Com. B. 115) has been repudiated (Little v. Hackett, 116 U. S. 366), it seems to me that, in a restricted sense, it does bear on the question of the defendant's responsibility to the plaintiff, as in Waite v. North Eastern R. Co. (96 Eng. Com. Law [1 El., Bl. & El.], 719, 728). We come, then, to the interesting and novel question whether the defendant is answerable to the plaintiff for the wrongs of the former's servant committed in the act of rendering gratuitous service to those with whom, and in a transaction with which, the plaintiff was identified, assuming that the servant was authorized to render the service. I cannot find that the point has been decided. The cases dealing with the liability of charitable corporations for the acts of servants are analogous, but the reasons commonly given for non-liability to the recipients of the charity in that class of cases are not applicable, although in reason a charitable corporation and an individual doing charitable work ought to be in the same class respecting the application of the rule respondeat superior; and the reasons given by the courts for the decision in those cases do not preclude a reason applicable to both. (See Kellogg v. Church Charity Foundation, 128 App. Div. 214.) The cases of passengers riding gratuitously may be thought analogous, but they belong to a class by themselves. Certain duties of the carrier spring from the relation of carrier and passenger, once that relation is found to exist, and the cases resting upon the negligent discharge of a duty cast upon or assumed by a party do not involve the rule respondeat superior, although some of the opinions |