Gray v. City of Brooklyn

By the Court, J. F. Barnard, J. These actions are brought against the city of Brooklyn for damages sustained by the plaintiff for the negligent .acts of the defendants’ officers and servants. In the first case the plaintiff’s action was dismissed after he produced his evidence, and in the second the court gave judgment in favor of the defendants upon demurrer. Both cases present the same question. The defendants in each case claim exemption under chapter 63 of Laws of 1862, section 39, page 203, which section is in these words.: “ The city of Brooklyn shall not be liable in damages for any non-feasance or misfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them or any or either of - them, by the provision of titles 4 and 5 of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any other provision of this act; but the remedy of the party or parties aggrieved for any such’misfeasance or non-feasance shall be, by mandamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, ■officer or appointee as the right of such party or parties may ■by law admit, if at all.” I .think the statute is a defense to the city. The actions are common law actions, and can only be brought against the person guilty of negligence, or his employer, and are maintained against employers only upon the principle that what one does by another he does byhimself. The principle had its origin in those cases only where the servant or agent was employed or appointed by the master. There was reason in maintaining the action against municipal [375] corporations, which had the power of appointment and removal of these officers. By the charter of the city of Brooklyn the governmental officers of the city are elected by the people, as directed by the legislative act, and are not subject to removal by the city government. The common council appoint some minor officers, and some are appointed by the mayor with the consent of two thirds of the city supervisors, for the term of five years ; all or nearly all the officers thus elected or appointed, hold their offices for a fixed term and are in but few instances removable by the common council. While the officers who are to do or neglect to do the duties charged upon them by law are thus elected and appointed, in accordance with the charter of the city and by force of it alone, there is manifest justice in the section inserted in the charter that the city should not be liable for the negligent acts of its officers, but that the - officers should be liable for their own negligent acts. The legislature had the power to enact this principle in the charter of a municipal corporation, unless restrained by the state constitution. No part of the constitution is claimed to have been violated, except that part of article 8, section 3,. which provides that corporations shall have the right to sue, and- be subject to be sued, in like cases as natural persons. This clause is not a restriction. on the legislative power to determine what shall be and what shall not be, a cause of action against a corporation. It provides only that where there js a cause of action in favor of, or against a corporation, it shall be enforced in the same way as if the same cause of action existed in favor of or against a natural person. The city of Brooklyn exists only by force of the law ere-? ating it. . This law is by the constitution subject to alteration and repeal. It is competent for the legislature to repeal the city charter and to provide for the election and appointment of other officers to do the duties now prescribed by and under the city charter. I am unable to see why the same legislature may not create a city and limit its liability, The power [376] is constantly exercised. Certain contracts made by a city officer, both in New York and Brooklyn, when there is no appropriation for the specific purpose, or when the same has been expended, are declared invalid. This limitation has been sustained by the Court of Appeals, and workmen employed by the proper city officers to do work upon roads in the city, after an appropriation was expended, have been adjudged to have no claim upon the city. The city officers employed the men. The city had the labor, but liability ceased when the appropriation "vyas expended, and that time coiild only be known to the city officers. The ordinary rule governing principal and agent between natural persons, is changed by this restriction, and made more favorable as to those municipal corporations in whose charter this provision is contained.. The same power can relieve a city froin the common1 law fiction on which these actions are based. The judment should be affirmed, with costs. [Kings General Term, February 10, 1868. Lott, J. F. Barnard and Tapper), Justices.] :