40 F. 50 | U.S. Circuit Court for the District of Southern New York | 1889
The testimony in this case shows clearly that the injuries to the dumping-boat for which the libelants seek to recover damages were caused by the carelessness of those in charge of the steam-tug belonging to the respondents. Their negligent acts were committed while they were engaged in removing refuse'from the streets. These persons were .under the immediate employment of the commissioner of street cleaning of the city of New York. That officer, as the head of that municipal department, had the custody of the tug. By act of the legislature known as the “consolidation act” he is charged with the duty of keeping the streets cleaned, and removing refuse, “as often as the public health and the use of the streets may require,” and is invested with authority to engage and discharge at his discretion all the employés necessary for the performance of the duties of the department. The only legal question in the case which merits notice is whether the cit)r is liable for the negligence of the employes of this department. If the duties delegated to him by law are such as primarily devolve upon the city, as a municipal or corporate obligation, he and his subordinates are the agents of the city, and the respondents are liable for their acts of misfeasance or non-feasance done in the course of their ordinary employment. It does not seem reasonable to treat the commissioner as an officer of the general public rather than of the city. His duties, unlike those of the officers of the departments of health, charities, fire, and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining its streets in fit and suitable condition for