| N.J. | Nov 15, 1885
Vie opinion of the court was delivered by
It has been settled beyond the possibility of further contention in this state, that municipal corporations are not liable to action for neglect to perform or negligence in performing duties imposed on them by law and due to the public, in behalf of any individual suffering damage by reason of such negligence, unless an action is given by statute. Where the employees or officers of a municipal corporation are negligent in the performance of such duties, the doctrine of respondeat superior will not apply. Livermore v. Board, &c., 2 Vroom 508 ; Pray v. Jersey City, 3 Vroom 394; Cooley v. Freeholders, &c., 3 Dutcher 415; Freeholders, &c., v. Strader, 3 Harr. 108; Condict v. Jersey City, 17 Vroom 157.
The duty of the city of Paterson to maintain a fire department is manifestly a duty owed to the public and imposed by law. Any one injured by negligence in the performance of
Plaintiff’s contention is that his case is exceptional, and not within the rule, upon the ground that the duty of keeping the machinery used for extinguishing fires in good order, is, as respects those who are employed in its use, a private duty, •owed, not to the public, but to the employee.
But the distinction thus sought to be made is, in my judgment, merely specious.
It does not appear what was the precise relation between plaintiff, ps a member of the fire department, and the city. Whether his services were voluntarily rendered or were paid for, is not disclosed. But in either case the relation is not the ■ordinary relation of master and servant. Employees of such corporations in the execution of its public duties have been held to be mere instruments in the performance of such duties, ■and to act as public officers charged with a public service. Condict v. Jersey City, supra.
The duty to provide and maintain apparatus for extinguishing fires is plainly included within the public duty of ■establishing a fire department for that purpose. The city, as ■a corporation, derives from it no special benefit or advantage. The duty is single and undivided, and although the city must perform this duty by means of agents or officers, it owes to them no special duty, differing either in kind or degree from the duty which it owes to others in this respect. The duty is of a public character, and on grounds of public policy its neglect will not give a right of action to any individual in the ■absence of a statute. If there are any reasons for a modification of this rule with respect to employees of such corporations engaged in hazardous service, they cannot be considered _ by the courts. The rule can only be modified by the legislature. In the absence of legislation the plaintiff is within the rule and plainly without a right of action.
For this reason the city is entitled to judgment on the ■demurrer.