New York & Brooklyn Saw-Mill & Lumber Co. v. City of Brooklyn

The liability of a municipal corporation to a person who has sustained damages by reason of a negligent omission of the corporation to perform a ministerial duty imposed by law upon it, cannot be doubted. But we think the duty of repairing the docks of the Gowanus canal was not imposed on the city of Brooklyn, but on the common council of that city. Such is the language of the statute. (Laws 1871, chap. 839.) That is an independent statute and forms no part of the general distribution of powers or duties among the different branches of the city government. Nor *39is it averred that tbe corporation bas, in any way, assumed tbe performance of tbe duty thereby imposed. Tbe name of the corporation when that statute was passed was, and still is, “ Tbe City of Brooklyn.” If tbe legislature bad intended to impose tbe duty upon tbe corporation they would have used the corporate name. Tbe common council are, it is true, tbe agents of tbe corporation. They may, nevertheless, be charged by tbe legislature with tbe performance of public duties for tbe benefit- of tbe people of tbe State which do not pertain exclusively to tbe affairs of tbe corporation ; and in such a case they should be treated as agents of the State and not of tbe corporation. As a corporation can act only through agents duly elected or appointed, pursuant to tbe Constitution and tbe act of incorporation, tbe legislature may prescribe tbe powers and duties of such agents and the corporation will be liable for their acts and omissions unless exempted from such liability by statute. Although their authority, emanates directly from tbe legislature they are agents of tbe corporation. They represent the corporation, and powers and duties with which they may be clothed by the act of incorporation are, in judgment of law, corporate powers and duties. That is the principle of the ease of Conrad v. Trustees of Ithaca, referred to in 16 New York, 158, and other kindred cases.

In the case before us, however, the repairing of the docks in question was not a duty imposed on the corporation by the charter thereof, nor was it enumerated among those thereby imposed upon any of its agents. It originated in the act of 1811. Commissioners who had previously been intrusted by the legislature with the building of the docks were superseded by that act, and the common council were appointed in their place to repair the same docks which had sunk. ' That work was directed to be done merely to perfect the improvement undertaken by the commissioners. That improvement was strictly a local one for the benefit of adjoining proprietors. A construction of a statute which imposes on the defendant such a liability as is claimed in this case ought to be very ■palpable before it is adopted. We think the most reasonable construction is that the duty and consequent liability were imposed on the common council, as commissioners only, and not as agents of the corporation. Upon principle therefore as well as upon the *40authority of the cases cited below we think the corporation is not liable for their acts or omissions in respect to the duty so imposed. (Lorillard v. Town of Monroe, 11 N. Y., 392, and cases cited therein ; Russell v. The Mayor, 2 Den., 464; Martin v. Brooklyn, 1 Hill, 545; King v. Same, 42 Barb., 627; see, also, Dillon on Mun. Cor., §§ 772-778; Maxmilian v. The Mayor, 2 Hun, 263.)

The order appealed from should therefore be affirmed, with costs.

Order sustaining demurrer affirmed with costs, with leave to amend.