McAvoy v. Mayor of New York

Barrett, J. This case differs from Maximilian agt. The Mayor (62 N. Y., p. 160) and Tone agt. The Mayor (MS.), in several important particulars. First. The commissioner of public works is one of the executive officers of the city (Laws of 1873, chap. 335, sec. 19). He is appointed by the mayor with the consent of the board of aldermen, and is removable by the mayor, for cause, subject to the approval of the governor (sec. 25). He contracts in the name and for the benefit of the city and (sec. 91) such contracts are to be regulated by the ordinances of the common council. He has no independent treasurer on whose requisition and to whom, as in the ease of the police board, the comptroller pays in solidi the sums required for the department. While in some special matters independent, he is mainly subject to the control of the municipality, and is, so to speak, one of its executive servants. By the charter the common council is vested with power “to prevent encroachments upon, and obstructions to, the streets, highways, roads and public places, not including parks; and to authorize and require the commissioner of public works to remove the same.” Also, “to regulate the opening of street surfaces, the laying of gas and water mains, the building and repairing of sewers, and the erecting of gas lights.” Also, “ to provide for and regulate street pavements, crosswalks, curb-stones, gutter-stones, sidewalks and the grading of streets.” Also, “ to make ordinances in relation to the construction, repair and use of vaults, cisterns, areas, hydrants, pumps and sewers.” It is further expressly provided, that the common council shall have power, “ by resolution, to require the commissioner of public works to do any work or take any action proper, for carrying into effect the powers of the common council.” The duties of the commissioner of public works are harmoniously fitted to the due execution of these legislative powers, so that there is no incongruity in the scheme. [248] By section 71 of the same charter, he is given cognizance and control, “ first, of all structures and property connected with the supply and distributon of Croton water; ” “ second, of the collection of the revenues arising from the sale or use of the Croton water; ” “ third, of opening, altering, regulating, grading, flagging, curbing, guttering and lighting streets, roads, places and avenues; ” “ fourth, of repairing and construction of public roads.” Here the word “ control ” must be read in the light of the context. It is.not an independent control, which is meant, but an exclusive agency under the control of the common council, exercised through its lawful ordinances. Agency, in case of a municipal corporation; does not depend upon the perfect efficiency of the control, but upon the legislative intent (See Barnes agt. District of Columbia, 3 Otto, 541; also Bailey agt. The Mayor, 3 Hill, 531, and 2 Denio, 433). Second. The duties of the commissioner of public works are not of a governmental or political character. His functions are not such as are performed (to quote from judge Forger’s opinion in the Maximilian case) “ by public officers in the discharge of duties imposed upon them by the legislature for the public benefit.” The case of the streets is eminently a corporate matter; so as to the Croton water.' The entire apparatus by which the latter is provided and distributed 'is corporate property. Corporate revenue is derived therefrom. It is true, as president Gardiner said in Bailey agt. The Mayor; 'that “ no one can suppose that revenue to the city of Hew York formed the motive for this grant or for its acceptance.” nevertheless, in the collection of these revenues, the commissioner has but one principal — not the people of the state, not even the general public of the city, - but the corporation. The same with regard to the case of the structures. It is equally true that in a certain sense the Croton water is a public work. It is, of course, for the benefit of the public. But so is all corporate undertaking. What we assert is, that it is [249] not public in the governmental sense. The element of sovereignty is wanting, and that is the test. Third. Similar cases, with respect to dangerous streets and sidewalks, have for years been tried, without even the suggestion of a doubt by either court or counsel as to corporate liability. As far back as The Mayor agt. Furze (3 Hill, 612) such liability was maintained as to neglected sewers. Again, in 1851, in Lloyd agt. The Mayor (5 N. Y., 369). In this latter case the city «was evidently held responsible for the negligence of the Croton aqueduct department, which, at that time, had “ charge ” of “ the public sewers of the city.” See Mr. Stevens’ argument, on page 374, where he cites the act of 1849, sections 15 and 20. See, also, at page 370, judge Ingraham’s opinion in the court below, where he says that “ this principle has so often been recognized in this court as the law, and in many cases without objection on the part of the defendant, as scarcely to leave it an open question.” This, too, is conceded in the Maximilian case (see page 170) as to streets, bridges, common ways of passage and sewers. Even in the case at bar, the point was not raised at the first trial, nor at the general term. It is fair to conclude that it is an afterthought, suggested by the result of the Maximilian, Ham and Tone cases. It proceeds upon the latest theory, namely, that the city is entirely and absolutely irresponsible; that its corporate existence is a mere name; that the municipality is the shadow and the departments the substance. This is what it comes to. For if the doctrine of' respondeat superior does not apply in the present instance, let me ask to what possible phase of injury to person or property can it be made applicable, so as to hold the city ? I cannot but think that there is a misapprehension as to the precise" point decided in the Maximilian and Tone cases, and that there is nothing there to prevent this action from proceeding to a consideration upon the merits. The motion to dismiss the complaint is therefore denied.