Bennett v. . Whitney

Finch, J. The principal dispute in this case respects the true nature and legal effect of the cause of action pleaded. The complaint is for negligence in leaving unguarded and unlighted an opening temporarily made in a city street. The defendants named are the mayor, the members of the common council, and the street commissioner of Binghamton, who are sued by their individual names, with the title of their respective offices added. The word “ as ” does not precede their official desig *306 nations. The complaint alleges that the defendant, the mayor, and the defendants who constituted the common council, held those offices respectively , that by the city charter they were made commissioners of highways, and that it became and was their duty to keep the city streets in good order and protect any excavation made therein. It then avers that the defendant Whitney was street commissioner of the city, and had charge of the work upon the excavation from which the plaintiff’s injury arose ; that, the mayor and common council directed it to be made, and the defendant Whitney obeyed the direction ; and that the mayor and common council and “ the said street commissioner, William Whitney,”'left the opening unguarded, and so were guilty of negligence which caused the injury. The complaint closes with a demand for judgment “ against the defendants.” The trial judge held, at the close of the case, that the action was against the defendants as individuals, and not as officers of the city. In this, we think, he was right. Whatever may have been some earlier doubts on the subject, it is settled in this court that one who assumes the duties and is invested with the powers of a public officer is liable to an individual who sustains special damage by a neglect properly to perform such duties. (Hover v. Barkhoof, 44 N. Y. 113.) Just this cause of action the complaint sets out. It alleges the assumption of official duties and the possession of official powers by the individuals named, their failure properly to perform those duties, and a resultant injury to the plaintiff caused by such negligence. The omission in the summons of the word “ as,” before the official titles of the defendants, indicates that they were sued as individuals and that the addition of their names of office was but descriptio persones. It may well be, as the appellant contends, that the mere omission of the word “ as ” in the title of the case is no longer conclusive. But that is so when the frame and body of the complaint plainly disclose an official or representative liability as the ground of action. In Beers v. Shannon (73 N. Y. 292), the plaintiff sued, adding after his name the words “ executor,” etc., but omitting the word “ as.” This court *307 held, that notwithstanding such omission, the “frame and averments and scope of the complaint ” was such as to clothe him with a representative character. But nothing in the frame of this complaint so neutralizes the omission of the word “ as.” On the contrary its scope and averments harmonize with that omission. All that is said in it relating to official character is perfectly consistent with the claim of personal liability indicated by the title, and does not compel us to hold otherwise. Until the close of the case there seems to have been no disagreement as to this construction, but all parties conceded it, and the trial was conducted upon that understanding. "W hat occurred was, in substance, as follows: After the plaintiff’s counsel had opened his case, the defendants’ counsel moved for a nonsuit upon the complaint and the opening, upon the ground that the mayor and common council could not be sued as in this case, but that the action should have been brought against the city of Binghamton. This motion did not bring to the attention of the court the question of official or individual liability as derived from the pleadings. The court did say that the action was brought “ under a special clause of the city charter; ” and this, as it respected the mayor and common council, in whose behalf alone the motion was made, seemed at the time the only ground of their liability. The trial proceeded until the plaintiff offered in evidence the resolution of the common council, passed September 6, 1875, to which the defendant objected, that “the action of the city of, Binghamton is not binding on these men sued here individually.” The form of the objection disclosed on the part of the defendants a perfect understanding of the meaning of the complaint. At the close of the plaintiff’s evidence the motion for a nonsuit was renewed on the ground that the action could not “ be maintained against the mayor and aldermen of the city of Binghamton individually.” At this point the trial judge inquired of the plaintiff’s counsel whether he sued the defendants “as individuals, or in their official capacity,” and was answered that the plaintiff sued them as individuals. The court then asked the defendants’ counsel if he so understood the *308 complaint, and he replied that he did. Thus all ground of misunderstanding was carefully removed, and the defense proceeded to the close upen a conceded construction of the complaint. But at the end of the proofs a new counsel intervened for the defendants, and sought to open the question of construction. He asked to be relieved from the concession of his associate, as having been made through inadvertence and mistake, and insisted that only an official liability had been pleaded. The court might very well have answered that the case, having been tried on one theory, ought not to be sent to the jury on another. We have had occasion to say something to that effect as conducive to a fair and just trial, and a bar to mistake and surprise, although in a case where the new theory first made its appearance on appeal. (Salisbury v. Howe, 87 N. Y. 128.) The trial judge, however, determined to hear and decide “ the whole question,” and, after argument, granted a nonsuit as to the mayor and common council, but held that the action was against the defendants individually, and the question of negligence as to the defendant Whitney must go to the jury. What has been said as to the proper construction of the complaint sufficiently indicates the ground of our concurrence with the conclusion of the trial court in that respect. The case, therefore, became one of negligence by an officer in the performance of official duty. (Robinson v. Chamberlain, 34 N. Y. 389.) It was not a case of non-feasance, or omission to act t at all, where in some cases as to the repair of highways, it may be necessary to show adequate means in the hands of the officer ; but a case of misfeasance, where the officer had acted, but conducted himself negligently to the special injury of an individual. Where that negligence is willful or intentional, the city charter makes it a misdemeanor, and “ in addition thereto ” declares the liability for damages to the party injured ; but we do not understand this provision as taking away, or in any manner destroying the right of the party injured, to sue for simple negligence, where an official act or omission of duty has resulted in his injury. We agree with the General Term that the provision referred to did not repeal the common-law *309 rule applicable to a case not named or made the subject of legislation by the charter itself, and was not intended to affect the rule of liability declared in the cases to which reference has been made. An examination of other exceptions taken in the progress of the trial has disclosed no error affecting its result. The judgment and order should be affirmed, with costs. All concur. Judgment and order affirmed.