The corporation of New-York had an undoubted power to raise, pitch, grade and make the street and avenue, as was done in this instance; and it was conceded on the trial of the cause, that the proceedings for these purposes had been regular. What was done, it was therefore lawful to do; and if the plaintiff was thereby incommoded, it was damnum absque injuria ; and gave her no right of action against those who had only exercised a legal power vested in them for the publio convenience and welfare. It would indeed be remarkable if such an act would, in any case, subject a party to an action ; and I think the law is not chargeable with so gross an absurdity. The plaintiff does not allege that any part of her land was takеn for the street or avenue; but one portion of her complaint is that she was injured by making the street and avenue on land which bounded two sides of her lot. She certainly may thus have sustainеd some damage, for more or less inconvenience results to individuals in every case of this description. It is so in the opening of new highways, and in the construction of canals and othеr public works: but if those on whom powers for such purposes are conferred do not exceed their Jurisdiction, they a\ 3 not responsible for collateral conse
Another supposed ground of action, vaguely suggested in the declaration, although hardly stated with any thing like legal precision, was urged by the counsel for the plaintiff in' error.
This alleged ground of action seems to me wholly unprecedented, and, in my judgment, can be sustained on no principle whatever. The error has arisen from confounding- powers and duties which are totally dissimilar. '
Public officers, of every grade and description, may be impeached or indicted for official misconduct and corruption. To this there is no exception from the highest to the lowest.
But the civil remedy for miscоnduct in office is more restricted, and depends exclusively upon the nature of the duty which has been violated. Where that is absolute, certain and imperative, and every mere ministerial duty is so, the delinquent officer is bound to make full redress to every person who has suffered by such delinquency. Duties which are purely ministerial in their nature, are sometimes cast upon offiсers whose chief functions are judicial. Where this occurs, and the ministerial duty is violated, the officer, although, for most purposes, a judge, is still civilly responsible for such misconduct.
But where thе duty alleged to have been violated is purely judicial, a different rule prevails; for no action lies in any case, for misconduct or delinquency, however gross, in the performance of judicial duties. And although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld, according to his own view of what .is- necessary and prоper, they are in their nature judicial, and he is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may bе impeached or indicted, but the.law will not tolerate an action to redress the individual wrong which may have been done.
The power of the defendants to make sewers and drains is clear, but it is not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper. No imperative duty rests upon the defendants to open any new drain whatever. They havе a discretion on the subject, and must necessarily decide when and where such works shall be made. If this were not so, this court by writ of mandamus might compel the making of new sewers, drains and vaults, the оpening of new streets and the paving of old ones ; and the same power, when applied to the country, would require us to supervise the discretion of commissioners of highways, and in likе manner coerce the opening of new roads and the closing of old ones, not in conformity with the views of the local officers, but as we should judge best calculated to promote the public interest. This is stated by way of illustration; for a mandamus will not lie to control the discretion of any tribunal or officer, nor is such tribunal or officer answerable in any form of action, for the manner in which any duty, of a judicial or discretionary nature, shall have been performed. Granting therefore-that a drain should have been made as the plaintiff claims, and even that the defendants wilfully, and in violation of their duty, refused to make one, of which however there is not a scintilla of proof, still no action lies for such neglect or violation of duty. As wеll might commissioners of highways be sued for refusing to lay out a new road on petition, or assessors for placing property at too high a valuation in the assessment roll. In these and innumerable other instances, the officer is to exercise his best judgment and discretion, and although he may be punished if he act corruptly, he is under no circumstances responsible, civilly, for thе execution of the trust reposed in him.
In the case of The Mayor, &c. v. Furze, (3 Hill, 612,) this court held, that the corporation having constructed certain sewers, were bound to keep the same in repair, and were respon
Although the language of the statute which confers on thе defendants power to make sewers and drains, is that of permission and not of command, yet in its nature it is plainly imperative. (
Judgment affirmed.