50 Barb. 365 | N.Y. Sup. Ct. | 1868
By the Court,
These actions are brought against the city of Brooklyn for damages sustained by the plaintiff for the negligent .acts of the defendants’ officers and servants. In the first case the plaintiff’s action was dismissed after he produced his evidence, and in the second the court gave judgment in favor of the defendants upon demurrer. Both cases present the same question. The defendants in each case claim exemption under chapter 63 of Laws of 1862, section 39, page 203, which section is in these words.: “ The city of Brooklyn shall not be liable in damages for any non-feasance or misfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them or any or either of - them, by the provision of titles 4 and 5 of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any other provision of this act; but the remedy of the party or parties aggrieved for any such’misfeasance or non-feasance shall be, by mandamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, ■officer or appointee as the right of such party or parties may ■by law admit, if at all.”
I .think the statute is a defense to the city.
The actions are common law actions, and can only be brought against the person guilty of negligence, or his employer, and are maintained against employers only upon the principle that what one does by another he does byhimself. The principle had its origin in those cases only where the servant or agent was employed or appointed by the master. There was reason in maintaining the action against municipal
The legislature had the power to enact this principle in the charter of a municipal corporation, unless restrained by the state constitution. No part of the constitution is claimed to have been violated, except that part of article 8, section 3,. which provides that corporations shall have the right to sue, and- be subject to be sued, in like cases as natural persons. This clause is not a restriction. on the legislative power to determine what shall be and what shall not be, a cause of action against a corporation. It provides only that where there js a cause of action in favor of, or against a corporation, it shall be enforced in the same way as if the same cause of action existed in favor of or against a natural person.
The city of Brooklyn exists only by force of the law ere-? ating it. . This law is by the constitution subject to alteration and repeal. It is competent for the legislature to repeal the city charter and to provide for the election and appointment of other officers to do the duties now prescribed by and under the city charter. I am unable to see why the same legislature may not create a city and limit its liability, The power
Lott, J. F. Barnard and Tapper), Justices.] :