27 A.D. 240 | N.Y. App. Div. | 1898
Lead Opinion
The action was brought to recover damages for injuries inflicted upon the plaintiff by two persons in the employ of the department of public works in the bureau of incumbrances. Upon the trial the complaint was dismissed and an appeal is taken from the judgment entered upon that dismissal. Where a. complaint is dismissed on the opening of the counsel, all the facts alleged in the complaint and those referred tó in the opening should be considered, even although they are not stated in the complaint, unless. they are objected to upon the specific ground that they are not admissible under the pleadings. (Clews v. The Bank of New York Nat. Banking Assn., 105 N. Y. 398.) The facts thus stated and alleged are substantially as follows: The plaintiff was in the employ of one Doyle at Ho. 2 Yesey street in the city of Hew York. In front of Ho.' 1 Yesey street, which seems to be next door to Ho. 2, and not on the opposite side of th.e street, certain traveling bags and trunks had been set out for show upon the sidewalk in such a way as to be an incumbrance on the street. The two men who inflicted the injuries upon the plaintiff were sent by the superintendent of the bureau of incum-. brancee, as it was his duty to do, to remove these articles incumbering the sidewalk. While they were thus engaged, the plaintiff was directed by his employer to take a leather traveling bag from his
Upon this state of facts the questions presented, are, in the first place, what was the nature of the duty imposed upon the two men in removing the incumbrances; and, in the second place, were they, when they inflicted the injuries upon the plaintiff, acting within the scope of the duties which they-were set to do, or had they reason to believe they were so acting ? That these bags and trunks were an incumbrance upon the highway - must be conceded. It is the duty of the- municipal corporation to see to it that no obstructions or incumbrances are permitted to remain upon the highway, and it is responsible for any injury which may happen because of its failure to perform its duty. (Turner v. The City of Newburgh, 109 N. Y. 301.) The duty is not a public one, such as that which rests . upon a. police officer to make an arrest or upon the keeper of á prison to properly control it, but it is in its nature private and the persons performing it are the agents of the corporation upon which the duty is imposed in its private capacity; and these agents are not public officers engaged in a public duty, and for their act while so engaged the corporation is liable precisely to the extent that any other master is liable for the acts of his servants while engaged 'in his business. (Conrad v. The Trustees of Ithaca, 16 N. Y. 158; Weet v. The Village of Brockport, Id. 161, note; Maxmilian v. The Mayor, 62 id. 160, 169, 170; Ehrgott v. The Mayor, 96 id. 264; Nelson v. Village of Canisteo, 100 id. 89.) In the two cases reported in 16 Hew York the nature.and origin of the duty imposed upon
For these reasons it was error to dismiss the complaint, and the judgment should be reversed and a new trial ordered, with costs to-the appellant to abide the event.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Rumsey in this case. In the removal of obstructions and incumbrances from the highway, as required by law, the municipal corporation performs something more than a police or governmental function. The city is liable for damages resulting from its failure .to remove such' obstructions or incumbrances. It follows that in doing what is thus- required to avoid direct corporate liability, the city essentially acts for its own corporate benefit, and the persons to whom it intrusts the duty become its' agents. The city is, in this view, clearly liable civilly for the acts of these agents, clone by them within the scope of their authority.
The question in the present case,' therefore, is whether the seizure of the bag in question, and the force used to obtain it, were within the scope of the agents’ authority. It will be observed that the complaint was dismissed upon the pleadings and upon the plaintiff’s opening. How, in the 9th paragraph of the complaint, it is dis-. tinctly averred that all the acts done by these agents, of which the plaintiff complains, were so done in the transaction of the defendant’s business and in furtherance of its orders.' It is also averred that these acts were done while the agents were actually engaged in seizing and removing the incumbrances in question. The plaintiff’s counsel claimed in his opening that these agents acted upon the
Upon this state of facts it seems to me quite clear that the plaintiff should have been permitted to put in his evidence. There was nothing, either in the complaint or opening, to conclude him absolutely upon any material question in the case. He might have shown that the tortious acts of the defendant’s agents were committed in the corporate business, and were within the scope of their authority. The case presented by this complaint and opening was not necessarily that of a wanton seizure from a passing citizen of a bag which he happened to be carrying, upon the wholly unfounded assumption that it was a part of some neighboring -incumbrance. The plaintiff was ready, and in substance offered, to prove that the defendant’s agents had reasonable cause to and did believe that the bag in question was part of the incumbrances which at that very moment they were in pursuit of, and that the plaintiff was seeking .to frustrate them in the performance of their immediate- duty.
The learned trial justice did not consider the latter question. He nonsuited the plaintiff primarily upon the ground that the men were not acting as the defendant’s agents, but as independent public officers performing police or governmental duty. Had he treated these men as corporate agents he would doubtless have permitted the plaintiff at least to make the attempt to prove that they were acting within the scope of their authority/ -For these reasons, as well as for those given by Mr. -Justice Rumsey, I agree to the reversal.
Judgment reversed, new trial ordered, costs to appellant to abide event.