76 N.Y. 506 | NY | 1879
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *508 The doctrine is well settled, that municipal corporations are within the operation of the general rule of law, that the superior or employer must answer civilly for the negligence or want of skill of an agent or servant in the course of their employment, by which another is injured. It is essential, however, to establish such a liability that the act complained of must be within the scope of the corporate powers, as provided by charter or positive enactment of law. If the act done is committed outside of the authority and power of the corporation as conferred by statute, the corporation is not liable, whether its officers directed its performance, or it was done without any express direction or command. It is ultra vires, and cannot be made the basis of an action for damages for that reason. These general principles are fully sustained by the authorities. (See Dillon on Mun. Cor., §§ 766, 767, and authorities cited.)
The liability of the defendant is sought to be maintained upon the ground that, although the defendant's horses and hose cart were purchased and designed for public service in the fire department, and were generally employed in that service, it was competent for the defendant to employ them in some other service, not of a public, but purely of a private character, so as to render the defendant liable for damages arising from their negligence. This position rests upon the ground that the corporation is liable whenever it uses the property in a service which is not of a public nature authorized by law, and its orders impose upon servants who have the charge and control of such property the duty of obedience, and render the corporation responsible for the negligent misconduct of the servant, as much as that of any other superior, or as for any other malfeasance.
We are referred to some authorities which, it is claimed, uphold the doctrine contended for; but we think that they do not sanction any such principle, as is manifest from an *510
examination of the same. In Eastman v. Meredith,
In this case, no power was conferred upon the common *513
council to employ the hose cart of the corporation for any such purpose; nor do we think that it could be justified, in pursuance of any general authority relating to the subject. Certain provisions of the city charter are relied upon as containing such authority, and it is claimed to exist under section 40, subdivision 4, which confers power to regulate sports. We think that it is quite obvious that it was not intended by the Legislature to authorize the common council to do anything more in this respect than to provide regulation for such amusements as would be likely to be given in the city by other parties. It clearly could not have been designed to authorize this body to participate in or to conduct such amusements on behalf of the corporation; nor does the control vested under this section over the personal property of the city, with power to make such orders as the common council deemed proper, confer any authority to perform any act which was not essential for the preservation and lawful use of such property. The provisions in the charter, contained in sections 222, 223 and 224, relating to the fire department, also fall far short of conferring any such authority. Assuming, however, that the common council, in making an order for a midnight parade of the fire department to celebrate the centennial anniversary of the nation, had authority under the provisions last cited, the difficulty in maintaining the plaintiff's action is the well-settled rule, that a municipal corporation is not liable for the negligence of firemen while engaged in the line of their duty: (Dillon on Mun. Cor., § 774;Hofford v. New Bedford, 16 Gray, 297; Fisher v. Boston,
The exemption from liability, in most of the cases last cited, is placed upon the ground that the service is performed by the corporation for the public good, in obedience to law, in which it has no particular interest, and from which it derives no particular benefit in its corporate capacity; that the members of the fire department are not the agents and servants of the city, for whose conduct it is liable, but act as *514 officers charged with a public service, for whose negligence, in the discharge of official duty, no action lies against the city, and the maxim of respondeat superior has no application.
It follows that the common council exceeded its power, in requiring that the fire apparatus and hose carts belonging to the city should be driven along the streets at midnight, and the negligence of the driver, in causing the injury to the plaintiff, was an act for which the defendant was not responsible.
The judgment should be affirmed.
All concur, except RAPALLO, ANDREWS and EARL, JJ., dissenting.
Judgment affirmed.