[225 N. Y.] Opinion, per CUDDEBACK, J. [Dec., entered May 26, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. Henry Smith for appellant. The exclusion of parol evidence of the warranty admitted by the pleadings was reversible error. (Thomas v. Scutt, 127 N. Y. 133; Studwell v. Bush Co., 126 App. Div. 818; 206 N. Y. 416; Getty v. Town of Hamlin, 46 Hun, 1; Dale v. Gilbert, 128 N. Y. 625; Chapin v. Dobson, 78 N. Y. 74; Lese v. Lamprecht, 196 N. Y. 32; Wigmore on Ev. § 2430; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138; Foot v. Bentley, 44 N. Y. 166; De Jonge & Co. v. Printz, 49 Misc. Rep. 112.) Joseph H. San for respondent. The court properly excluded the evidence which the defendant attempted to introduce in support of the warranty alleged in its answer. (Corse v. (Corse v. Peck, 102 N. Y. 513; Becker v. Higgins, 21 N. Y. 397; Pollen v. Le Roy, 30 N. Y. 549; Lese v. Lamprecht, 196 N. Y. 32.) CUDDEBACK, J. The action was brought to recover the sum of about $800, a balance due on the sale by the plaintiff to the defendant of certain Norton elevator door checks and closers. The answer set up a breach of warranty that the appliances were fit and proper for the purposes intended. The answer further set up a counterclaim based mainly on a breach of warranty. The reply did not deny that there was such a warranty; therefore, it stood admitted. The trial court directed a verdict in favor of the plaintiff and dismissed the counterclaim. That determination has been unanimously affirmed at the Appellate Division. On the trial evidence which tended to show that the 1918.] Statement of case. [225 N. Y.] articles furnished were not fit and proper for the purposes intended was excluded. It is plain that with the warranty admitted by the pleadings the defendant could show a breach of the warranty. Therefore, there was error in the court's ruling which led to the dismissal of the defendant's counterclaim and to the direction of a verdict against him for the full amount of the plaintiff's demand. We are constrained to reverse the judgment appealed from. The judgment should be reversed and a new trial granted, costs to abide the event. HISCOCK, Ch. J., COLLIN, CARDOZO, POUND, CRANE and ANDREWs, JJ., concur. Judgment reversed, etc. FRANK M. DOWLER, an Infant, by FRANK Dowler, His Guardian ad Litem, Appellant, v. JOSEPH JOHNSON, Respondent. Negligence New York (city of) — when officers and men of fire department not exempt from limitations in respect of speed action against fire commissioner for injuries from automobile in which he was being driven by fireman missioner not exonerated as of course. com 1. Officers and men of the fire department of the city of New York are not exempt from the ordinary limitations in respect of speed, unless they are proceeding to a fire (New York Charter, § 784), or are responding for emergency work in case of fire, accident, public disaster or impending danger. (Code of Ordinances of New York, chap. 24, art. 2, § 19, subd. 1.) 2. In an action against the fire commissioner of the city of New York to recover for personal injuries alleged to have been sustained by plaintiff through a collision with the automobile in which the commissioner was being driven by a fireman upon a tour of inspection, it was error to exclude testimony that the automobile was being driven at excessive speed on the theory that because the relation [225 N. Y.] Points of counsel. [Dec., between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the wrong. If the defendant permitted an excessive speed to be maintained, after reasonable opportunity for protest, a jury might find his silence equivalent to approval, and ratification may be equivalent to command. The defendant had a right to restrain the driver who was subject to his orders and he is not exonerated as of course because the driver was not his servant. Dowler v. Johnson, 171 App. Div. 935, reversed. (Submitted November 20, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Herbert C. Smyth, James B. Mackie and Julius M. Lowenstein for appellant. Defendant was in law liable under the rule of respondeat superior. (Maxmilian v. Mayor, 62 N. Y. 160; People ex rel. Croker v. Sturgis, 91 App. Div. 286; People ex rel. Clifford v. Scannel, 74 App. Div. 406; 173 N. Y. 606; People ex rel. Hart v. Fire Comrs., 82 N. Y. 358; People ex rel. Kent v. Fire Comrs., 100 N. Y. 82; Reed v. Met. S. Ry. Co., 58 App. Div. 87; Higgins v. W. U. Tel. Co., 156 N. Y. 75.) Public officers are liable personally to third persons who are injured by their personal negligent conduct. (Murphy v. Comrs. of Education, 28 N. Y. 134; Day v. Reynolds, 23 Hun, 131; Hartwell v. Riley, 47 App. Div. 154; Bryant v. Town of Randolph, 133 N. Y. 70; Bennett v. Whitney, 94 N. Y. 302; Litchfield v. Bond, 186 N. Y. 66.) William P. Burr, Corporation Counsel (Terence Farley of counsel), for respondent. A public officer is not liable for the acts or omissions of the official subordinates 1918.] Opinion, per CARDOZO, J. [225 N. Y.] appointed by him or working under his direction, if they are not in his private service, but may themselves be considered as officers of the municipality or state, unless such officer personally directed the performance of the act complained of, or personally co-operated in the negligence from which the injury resulted, if he exercised reasonable care in the selection of the subordinates. (22 Ruling Case Law, 487; Murphy v. Emigration Comrs., 28 N. Y. 134; Cardot v. Barney, 63 N. Y. 281; Donovan v. McAlpin, 85 N. Y. 185; Walsh v. Trustees, etc., 96 N. Y. 427; Bieling v. City of Brooklyn, 120 N. Y. 98; Bailey v. Mayor, etc., 3 Hill, 531; Brissac v. Lawrence, 2 Blatch. 121; United States v. Broadhead, 24 Fed. Cas. 1242; Rubens v. Robertson, 38 Fed. Rep. 86; Mister v. Brown, 59 Fed. Rep. 912; Riggin v. Brown, 59 Fed. Rep. 1006.) CARDOZO, J. The defendant in 1913 was the fire commissioner of the city of New York. On March 20 of that year, he left fire headquarters in one of the department's automobiles to inspect some new fire houses in Brooklyn. The automobile was driven by a fireman assigned to that duty by the commissioner upon the recommendation of the fire chief. While so driven, it collided with another automobile, and the plaintiff was injured. The complaint charges that at the time of the collision the automobile carrying the defendant was driven under his orders, and that it was driven negligently and at excessive speed. The officers and men of the fire department are not exempt from the ordinary limitations in respect of speed, unless they are "proceeding to a fire" (Charter of N. Y. sec. 784) or "responding for emergency work in case of fire, accident, public disaster, or impending danger" (Code of Ordinances of N. Y. chap. 24, art. 2, sec. 17, subd. 1). The plaintiff's counsel in opening the case stated that the defendant's car was [225 N. Y.] Opinion, per CARDOZO, J. [Dec., going at the rate of fifty miles an hour. He was about to offer evidence of the negligence charged when he was checked by a ruling of the court that no matter what the action or negligence of the chauffeur might be, the defendant was not liable. The record is very informal, and the plaintiff's offer of proof is not as definite as we might wish; but we think there is no doubt in respect of the ruling which the court intended to make. The court's view was that because the relation between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the wrong. complaint was dismissed; and on appeal to the Appellate Division the judgment was affirmed by a divided court. The We think there was error in refusing to give the plaintiff an opportunity to unfold his case. We see no repugnancy between the complaint and the opening. None certainly can be found in the mere relation that subsisted between the defendant and the driver. We do not doubt the rule invoked by counsel for the defendant, and sustained by superabundant citations, that public officers are not liable for the negligence of their subordinates unless they co-operate in the act complained of, or direct or encourage it (Lane v. Cotton, 1 Ld. Raymond, 646; Bailey v. Mayor, etc., of N. Y., 3 Hill, 531, 538; Cardot v. Barney, 63 N. Y. 281; Robertson v. Sichel, 127 U. S. 507; Ely v. Parsons, 55 Conn. 83; Story on Agency, sec. 319). That is at least the general rule, and if it is subject to any other qualifications, they are not now material. But here the very question is whether the defendant did direct or encourage the negligent act or personally co-operate in it. Undoubtedly he is not liable for the negligence of the driver on the theory of respondeat superior. The relation between them was not that of master and servant. If he had been out of the car at the time of the accident, no one would suggest that he |