71 N.Y. 580 | NY | 1878
The appeal is brought upon a judgment entered, sustaining a demurrer to the complaint. The complaint alleges in substance that, by an act of the Legislature passed in 1866, entitled, "an Act to improve the Gowanus canal, in the city of Brooklyn," and the acts amendatory thereof, certain commissioners named and appointed were authorized to cause the sides of the Gowanus canal, not then docked, to be docked, the expense to be assessed on the property so docked; that plaintiff at the time owned property along the lines of said canal, which was not docked; that the said commissioners proceeded to cause docks to be erected "in and upon plaintiff's land adjacent to said canal," but prosecuted the work so negligently and unskillfully, that prior to April, 1871, the dock sunk and became utterly *583 unfit for use; that by act chapter 839, Laws of 1871, entitled, "an Act to provide for the assessment and collection of the costs of the improvement of the Gowanus canal, in the city of Brooklyn, and for the reconstruction of docks in the said improvement, which have sunk or become unfit for use," it was provided that the cost of said docks should be assessed on the property so docked, including plaintiff's lands, and that the common council of the city of Brooklyn should cause to be repaired or rebuilt, at the expense of the city, the docks constructed by the commissioners, where the same had sunk and become unfit for use. The plaintiff claimed that, by the act last mentioned, it became the duty of the defendant to rebuild the dock upon plaintiff's land; that it neglected and refused so to do, by reason whereof plaintiff suffered damage in being deprived of the use and rental of said dock, etc.
The subject of municipal liability for the nonfeasance or misfeasance of its officers or agents has given rise to extensive litigation, and the distinctions recognized by some of the authorities, and the apparent conflict between others, renders it often difficult to determine in a given case to what class it belongs. I do not deem it needful to review the authorities, nor discuss to any extent the principles which have been adjudged, for the reason that the conclusion at which I have arrived, after some hesitation, is based upon the construction of the statute imposing the duty in connection with the previous legislation in relation to the improvement in question. There are, however, some general principles to which it may be proper to advert, which seem to be established by the authorities:
First. When, by a municipal charter in the distribution of powers and duties among the different municipal officers, duties of a public character are imposed, the officers are regarded as agents of the corporation, and it is liable for their acts or omissions. This has been held to be based upon an implied agreement, upon the consideration of the grant of franchises, and which agreement inures to the benefit *584
of every individual interested in its performance. (Conrad v.Trustees, etc.,
Second. A municipal corporation is held liable for the acts af an agent it employs to do business for its own corporate or private benefit, the same as a private individual, and this, although the agent may be appointed by the Legislature, or under legislative authority, if it accepts and ratifies the appointment. (Appleton v. Water Com'rs, 2 Hill, 433.)
Third. When a ministerial duty is expressly imposed upon a municipal corporation by legislative enactment, in the performance of which the public are interested, it may be held liable, although the circumstances are such that an implied acceptance of the particular provisions may not be inferred.
We have recently held that a municipal corporation is not liable for the omission to perform, or for negligence in the performance of a public duty laid upon an independent officer, in which it has no private interest, and from the performance of which it derives no special or corporate benefit, although it is required to elect or appoint such officer, and although the officer has in charge, and the negligence imputed is the use of property owned by the corporation. (Maximilian v. Mayor,etc.,
The Legislature, by the act of 1866, doubtless for some *586 public purpose, appointed nine commissioners to build docks along the sides of the Gowanus canal, the expense of which was to be ultimately paid by an assessment upon the adjacent land; the city of Brooklyn, however, was to advance its bonds to raise money for immediate use. It is not claimed that these commissioners were in any sense officers of the city or its agents, nor that the city was responsible for their acts or omissions. They were officers of the State, appointed to perform public duties, but not duties in which the city had any special interest. If the Gowanus canal was an arm of the sea, or a stream in which the tide ebbed and flowed, the State owned the land under water, and might, for purposes of commerce, improve it, or authorize its improvement. However this was, it is clear that the improvement was not a corporate work, and the city, as a corporation, had no control over or interest in it. The act was amended in 1867, and again in 1869, chapter 793. By the latter act the commissioners were required to report to the common council by the 1st Monday in June, 1870, the cost of the work, etc., and if not then completed the amount necessary to complete it; "and thereupon the said commissioners shall be discharged from the further charge of said improvement, and any further work shall devolve upon the said common council."
This provision is, I think, significant of an intention on the part of the Legislature to change the commission from the individuals theretofore composing it to the body known as the common council, without affecting the relations of the commission, or the work to the city or to the State. The work was to be continued as before and carried on to completion, but under the charge of specified city officers, instead of the commissioners, and there is nothing in that act indicating a purpose to change the improvement to a city work, or to impose any duty upon the city. Under this act, it seems to me clear that the common council would be regarded as an agent of the State in respect to this work, and not as a city agent. *587
When, in the act of 1871, the Legislature directed the common council to rebuild a portion of these docks, it is fairly presumable that this direction was given to them, in the same capacity, as they acted after the duties of the commissioners were devolved upon them by the act of 1869. It adds nothing to the force of the contention of the plaintiff that the docks were to be rebuilt at the expense of the city. This burden might have been cast, if the commissioners had been continued. A similar burden was cast upon the city of New York in the case in 2 Denio, 461 (infra), where the city was not held liable. The work to be done, as we have seen, was not a corporate work, but mainly for the benefit of private owners; it was directed to be done by a statute having no relation to corporate duties. The work was commenced and nearly completed by independent officers appointed by the State, for whose acts the city was not responsible, and we think the fair construction of the acts of 1869 and 1871 is that the Legislature merely intended a substitution of the common council for the commissioners, and that both were agents of the State, and not of the city. I think the case falls within the principle of Russell v. The Mayor (2 Denio, 461), andMartin v. Mayor (1 Hill, 545), and therefore concur with the court below that the defendant is not liable.
The judgment must be affirmed.
All concur.
Judgment affirmed. *588
