Missano v. Mayor of New York

Bartlett, J. This action was Drought to recover damages for the death of a child, who was run over and killed by a horse attached to an ash cart of the street cleaning department of the defendant. Two questions were argued before us on this appeal. - The first, whether plaintiffs complied with the provisions of chapter 572 of the Laws of 1886, requiring a filing with the corporation counsel of a notice of intention to commence the action; the second, whether the city of Mew York is liable for the alleged negligent act of an employee of the department of street cleaning ? The first question only was considered by the learned *127 Appellate Division ; that court held the requisite notice was not served and dismissed the complaint. We agree with the opinion of Judge Gray as to the first question, wherein he holds that the notice given by plaintiffs of their intention to commence this action was a substantial compliance with the statute. We also agree with Judge Gray that the case on the merits was properly submitted to the jury, but are unable to adopt his conclusion that the judgment should be affirmed on the ground that the city of Hew York is not liable for the negligent acts of the employees in its department of street cleaning. The weight of authority in this state establishes, we think, the liability of the defendant. This subject has been discussed at length by learned judges and text writers, so that a brief reference to the principles and authorities involved is all that is necessary at this time. Judge Dillon points out in his work on Municipal Corporations (fourth edition) that such corporations are possessed of dual powers; the one governmental, legislative or public, and the other proprietary or private (§ 66); that the care of the streets is within the latter classification (§ 980). In Conrad v. Trustees of the Village of Ithaca (16 N. Y. 158) it was held that where the trustees of the village were made by its charter commissioners of highways they were to be regarded, in respect to that function, not as independent public officers, but as the agents of the corporation, so as to make the latter civilly responsible for their acts of omission, according to the law of master and servant. In a note to the case last cited is published an opinion by Judge Selden in Weet v. Trustees of the Village of Brookport, wherein he points out the principle that lies at the basis of the rule which makes a municipal corporation liable under the maxim" of respondeat superior as follows: “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case *128 of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance.” This liability of the municipality as to the care of the streets was again recognized by this court in Ehrgott v. Mayor, etc., of City of New York (96 N. Y. 264). Judge Earl, after citing Conrad v. Trustees of Ithaca (16 N. Y. 158), Requa v. City of Rochester (45 N. Y. 129), Hutson v. Mayor, etc. (9 N. Y. 163), Davenport v. Ruckman, (37 N. Y. 568), Hume v. Mayor, etc. (74 N. Y. 264), observed that the rule has been somewhat criticised, but that “ it has the sanction of a wise public policy, the support of good reasons, and that its operation is generally just and beneficent.” This principle has been recognized in many other cases in this state that need not be cited. It has also been approved by the Supreme Court of the United States in Barnes v. District of Columbia (91 U. S. 540), and by the Circuit Court of the United States in Barney Dumping-Boat Company et al. v. Mayor, etc., of City of New York (40 Fed. Rep. 50). In the latter case, Judge Wallace, referring to the commissioner of street cleaning, aptly says: “ His duties, unlike those of the officers of the departments of health, charities, fire and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to them.” The case of Maxmilian v. Mayor, etc., of New York (62 N. Y. 160) is cited as an authority for the defendant. It is a leading case defining the limits of municipal power, public and private, and is in accord with the authorities we have cited. The question there presented was whether the commissioners of public charities and corrections performed their duties for the especial benefit of the city of Flew York in its pro *129 prietary or private interests, or whether they exercised a public function as an organ of the sovereign power “ in the due discharge of the duty of the state in that locality to the poor, the crazed, the wicked.” It was held that the commissioners were clothed with public powers, being called upon to maintain a vast system of charity and penal administration representing the sovereignty of the state. - Judge Folgeb, in his opinion, pointed out that the cases cited by plaintiff were to be distinguished, as they rested upon principles in harmony with those announced by the court; he referred particularly to Conrad v. Trustees of Ithaca (16 N. Y. 158) .as an illustration of the duty of a municipal corporation to care for its streets when acting as any other private owner of property. There are many duties imposed upon a municipality that may be discharged by a commissioner or superintendent who hires and discharges sub-agents and servants, but this in no way relieves it from responsibility for the negligent acts of those so employed. At the time this alleged cause of action accrued it was the duty of the city of Hew York to keep its streets in repair and to see that they were thoroughly cleaned and kept clean at all times; also to remove the sweepings, ashes and garbage as often as the public health and use of the streets required it to be done. (Consolidation Act, § T04, as amended by chap. 269, Laws of 1892.) The fact that the discharge of this duty might incidentally benefit the public health did not make the acts of the commissioner of street cleaning a public function. It is clear upon principle and authority that the city of Hew York, in the ordinary and usual care of its streets, both as to repairs and cleanliness, is acting in the discharge of a special power granted to it by the legislature, in the exercise of which it is a legal individual, as distinguished from its governmental functions when it acts as a sovereign. (Maxmilian v. Mayor, etc., 62 N. Y. 164.) *130 The judgment and order appealed from should be reversed and the judgment of the Trial Term affirmed, with costs in all the courts.