Conroy v. Gale

By the Court Miller, P. J. It is settled that a contractor employed by the State to put the canal in repair is- liable to an individual who sustains special damages by reason of the contractor’s neglect to perform his duty. (Robinson v. Chamberlain, 34 N. Y., 389; Fulton Ins. Co. v. Baldwin, 37 N. Y., 648.) It must also be admitted, I think, and I understand it to be conceded, that if the contractor is liable at all, it is by reason of his occupying the same- position as the superintendent of repairs of the canals. The Laws of 1857, chap. 105, § 1, authorized the canal board to let by contract any and all sections of the canals of this State where in their judgment the repairs may be made more economically than [347] by superintendents; and the repairs provided for in the contract were to be made under the direction of the commissioner in charge. This and subsequent provisions of the same act placed the contractor in the position formerly occupied by the superintendent, and imposed upon him the same liability. It is contended, however, by the defendant’s counsel that the contractor is not liable in an action for damages to an individual;, that the superintendents, under the direction of the canal commissioners, are to keep the canals in repair, and, Dy the Laws of 1857, the contracting board were authorized to let by contract the work formerly done by the superintendents, and the canal bridges never came under the supervision of either of the superintendents, the canal board or the contracting board, but. their care and maintenance has been confided to the canal commissioners alone. As I understand the position of the counsel, the claim made is that canal bridges do not stand in the same category and are not governed by the same rules as other repairs upon the Ene of the canal, and are not embraced within the contract of the con tractor. By chap. 207, Stat. Laws of 1830, § 1, the canal commissioners are authorized and required to construct and maintain at the public expense road and street bridges over the. Erie canal wherever constructed. (See also Stat. Laws of 1840, chap 372, § 1; Stat. Laws of 1857, chap. 105, § 4.) The State was thus required to maintain canal bridges, and, by the Laws of 1867, chap. 577, § 3, every contract made-under that act, and the act of 1857 thereby amended, was held and adjudged, to hold and bind the contractor not only to put, but also to keep the section within the contract, with all its bridges and every other matter relating thereto, by all needful reparations, &c., in repair, and so maintain the same during the existence of the contract. This provision places the bridges precisely upon the same footing as any other portion of the work within the contract, and it would therefore appear that they are completely covered by and embraced within its terms. The State is bound to maintain the bridges, and the [348] contractor undertakes to do so by his contract. If this construction is correct, then the defendant was liable for damages .accruing for his neglect and failure to repair the bridge, as he would be for any other neglect of duty. In connection with the point last discussed, it is also urged that the question of maintenance is always a question of discretion which cannot be delegated; that the liability of the • contractor is measured by that of the canal board, and that in all cases where a discretion is to be exercised by a public officer an action will not lie, against him. I think that none of these positions can be maintained, and that no discretion rests with the contractor which exonerates him from liability when he fails to perform his duty. By the contract it is provided that “ the work embraced in this contract shall be performed under the immediate direction of the canal commissioner in charge, and at such times and seasons, at such places in the work, and in such manner as the aforesaid commissioner shall direct.” The contractor’s duties are specified fully in the contract, and a supervisory care over the work is confided to the commissioner, to guard against negligence, willfulness, or incompetency, and when in his opinion the interests of the State are likely to suffer; but no power is taken away, so far as the performance of the contract is concerned. The contractor stands exactly where the superin tendent of repairs did prior to the laws authorizing the let ting of the canals by contract, and is equally liable foi negligence in the performance of his duties. In Adsit v. Brady (4 Hill, 630), it was held that a superintendent of repairs on the canal was liable for misfeasance or nonfeasance. That officer acted under the “ direction of the canal commissioners” (1 R. S., 236, §§ 100, 101), which in the case cited was held to mean that the superintendent should be under the general direction of the commissioners, and should “ follow their instructions, if any are given, as to the extent and manner of making repairs, and the mode of discharging his other duties.” The principle decided is applicable here, and although the defendant by the terms of the [349] contract was under the general direction of the canal commissioners, yet this did not relieve him from the performance of the obligations imposed by the contract. He was bound to keep the canals in repair, and this was not a matter of discretion of a judicial nature, requiring the exercise of qualities of deliberation and' judgment, but an imperative duty required by the contract and imposed by the law. In the performance of this duty he acted ministerially, and although bound to exercise a discretion as to the means to be employed, and the time when the repairs were to be done, yet he was not entitled to the immunity of a judicial officer or exempted from liability for an improper discharge of his duty. (Hicks v. Dorn, 42 N. Y., 47.) The cases cited by the defendant’s counsel to sustain the doctrine contended for have no application to a case of the character of the one now presented for our determination. It may also be remarked, that it is fair to assume that the point now considered was embraced in the contract in Robinson v. Chamberlin (supra). I think that no notice of the defect to the contractor was necessary. It was his duty to keep the bridge in repair, and if the injury resulted from a failure to perform this obligation, he is responsible for damages. (Barton v. City of Syracuse, 37 Barb., 292, 293; 36 N. Y., 54, 58; Wallace v. The Mayor, 18 How., 169.) Whether the defect was so far concealed as to relieve the defendant from responsibility was a question of fact for the jury. Ho point is made on the argument by the defendant upon the question of negligence; but if it is to be considered, it is sufficient to say that it was also a matter for the jury to determine. The discussion had covers all the points urged by the defendant’s counsel, and I am of the opinion that there was no error upon the trial, and that a new trial must be denied, and judgment should be ordered for the plaintiff on the verdict, with costs. Pabkeb, J., concurs; Potter, J., dissents.