
    The People vs. The Corporation of Albany.
    An indictment lies against a corporation, quasi a corporation for neglecting to do what the common good requires; as where the corporation of a city have power to direct the excavating, deepening or cleansing of a basin connected with a river, and neglect to take the necessary measures in that respect after such basin becomes foul by the aggregation of mud and other substances, so that the water is corrupted and the air infected by noisome and unwholesome stenches, and thus a nuisance created.
    The corporation of the city of Albany has no right, under its corporate powers granted by charter, or by special acts of the legislature, to remove the bulk-head at the foot of the basin, connecting the Erie canal with the Hudson river; if the public health can be preserved in no other way than by the removal of the bulk-head, the duty of removing it is no more incumbent upon the corporation than it is upon individual citizens ; and where a court of general sessions instructed a jury that the corporation were bound to abate a nuisance arising from the basin being foul, even if in doing so it should he necessary to cut down or remove the bulk-head, and a verdict was found accordingly, the judgment entered upon such verdict was reversed by the supreme court upon writ of error.
    Error from the general sessions of Albany. The mayor, aldermen, and commonalty of the city of Albany were indicted for neglecting to remove a nuisance ; they being charged with permitting and suffering the basin in the Hudson river, at the termination of the Erie canal, to be foul, filled and choked up with mud, rubbish, and dead carcases of animals ; whereby the citizens were not only deprived of the benefit and advantage of using the water for the convenience of themselves *and families, but the mud, &c. became offensive and nauseous, corrupting the water, and causing noisome and unwbolsome smells, infecting the air to the damage and common nuisance of the citizens residing in the vicinity and those passing and re-passing the basin. The duty of cleansing the basin was charged upon the corporation, and it was alleged that they had been used and accustomed to cleanse the same, but that from, &c. until &c. they did not do so, but on the contrary permitted and suffered the basin, alleged to be a common water-course, to be foul, filled and choked up. The corporation put in a plea of not guilty, and the cause was tried at the general sessions. On the trial, it was proved, on the part of the prosecution, that there were deposits of ground in the basin which remained uncovered and exposed, from which offensive stenches arose ; that the water did not flow in and through the basin as it had been wont to do, and was unfit for drinking or culinary purposes ; that the stenches arising from the basin were offensive ; and that the condition of the basin was such as to be injurious to the health of persons living in the vicinity thereof.
    On cross examination of the witnesses, it appeared that the bulk-head, at the foot of the basin, or the east end of Hamilton street, was the cause of the nuisance complained of, and that the only mode of abating and effectually removing it, would be to remove the bulk-head, or to open a space in the same large enough for the free flow of the waters of the Hudson ; that the bulk-head was erected by a joint stock company, under the authority of an act of the legislature, with the consent of the corporation of the city, without which assent the bulk-head was not authorized by the act of the legislature to be erected. The counsel for the corporation insisted that the evidence was not sufficient to warrant a conviction ; and requested the court to charge the jury, first, that an indictment for a nuisance could not be sustained against the defendants in their corporate capacity for acts of omission ; that if it had been shown that it was the duty of the corporation to abate and remove the nuisance, the individual officers to whom that duty apertained ought to have been presented, and not the corporation; second, that the basin although within the jurisdiction of the city, being part of the Hudson *river, an arm of the sea, the corporation, as commissioners of highways, are not bound to remove obstructions in it, nor subject to indictment for omitting to remove the same ; third, that if the jury should find that the nuisance in question, if any, was created by a joint stock company, under the authority of an act of the legislature by the erection of the bulk-head at the foot of the basin, that then the work or erection being authorized by a statute of the state, the corporation are not liable to this indictment; and fourth, that the corporation were not authorized, and if authorized, were not bound to remove the bulk-head at their own expense, and that the joint stock company which made the erection were bound to remove it, if it was the cause of the nuisance. The court of general sessions refused so to charge the jury, and on the contrary thereof, delivered their opinion that the charter of the city of Albany giving to the corporation the power to prevent and remove nuisances, it became their duty to prevent and remove them, and that if the jury were- satisfied of the existence of the nuisance complained of, the corporation were liable to be convicted; that it was not an answer to the indictment that a joint stock company had placed the obstruction called the bulk head in the river, by virtue of an act of the legislature, because the corporation had assented to the erection of such bulk-head, and were so far a party to the erection; that the safety and preservation of the public health was a paramount law, and that it was the duty of the corporation to abate the nuisance, even if in so doing it should be necessary to cut down or remove the bulk-head. To which charge of the court, and refusal to charge as requested by the defendants’ counsel, the defendants excepted. The jury found a verdict of guilty against the defendants, who sued out a writ of error upon the judgment entered upon such verdict.
    The case was argued here by
    J. M’Kown, for the corporation.
    E. Livingston, (district attorney of Albany,) for the people.
   *By the Court,

Nelson, J.

The defendants were indicted and convicted for neglecting to do an act in which the public are deeply interested, and which it is supposed belonged to them, as a part of their duty, under their charter. By the charter, Laws of 1826, page 192, § 15, they are, among other things, empowered “ to abate or remove any nuisances in any street or wharf, or on the lot or enclosure of any person,” “ to prevent all obstructions, in the river, near or opposite to such wharves, docks or slips.” “ And generally to make all such rules, by-laws, and regulations for the good order and government of the city and tne commerce and trade thereof as they may deem expedient, not repugnant to the constitution and laws of this state.” These provisions are extracted from the law of 1826, but the powers they convey always belonged to the city. 2 R. L. 468, 9. Since 1808 the jurisdiction of the common council of Albany has extended to the middle or main channel of the Hudson river, that being then established as the easterly bounds of the city. In 1823, certain commissioners were authorized to construct a basin in the Hudson river, within the bounds of the city, and opposite to the docks fronting the harbor, extending from the state arsenal to the foot of Hamilton street, for the convenience of the commerce of the city, and the accommodation of the river and canal navigation. The land covered bjr the water of the basin has been conveyed by the state by letters patent to the commissioners. The construction of the basin has been completed at a heavy expense to the proprietors, and meets the most sanguine expectations of its projectors. The 6th section of the act of 1828, page 182, by which the act of 1826, is amended, makes it lawful for the corporation of Albany to order and direct the excavating, deepening or cleansing any part of the basin in front of any pier lot, or any part of the Hudson river, in front of any wharf or pier lot; the expense of which shall be apportioned upon the lots benefited, and remain a lien until paid.

There can be no doubt the corporation have the legal power to remove the cause of the nuisance complained of, if that can be effected by deepening and cleansing the basin ; and, I apprehend, it is impossible to distinguish, in reference to the *subject in question, between their power and their duty. The former constitutes a part of the mass of corporate powers which they have sought for the promotion of the public good; the execution of which is not at their option. They are bound to execute them when demanded by the public interest. The means put within their reach for the purpose are ample, and exclusively under their control. It is well settled that when a corporation or an individual are bound to repair a public highway or navigable river, they are liable to indictment for the neglect of their duty. An indictment and an informotion are the only remedies to which the public can resort for a redress of their grievances in this respect. If an individual has suffered a particular injury, he may recover his loss by an action on the case. 1 Hawk. Pl. Cr. 76, 369. 2 Chitty’s Cr. Law, 333, 352, 3, 603, 4, 5. 3 Burns’ J., 217. 5 Burr. 2700. Cowp. 86. 4 Black. Com. 167. The definition of a nuisance confirms the above principle. A common nuisance, says Hawkins, seems to be an offence against the public, either by doing a thing which tends to the annoyance of all the king’s subjects, or by neglecting to do a thing which the common good requires. 1 Hawk. 360. 4 Black. Com. 166.

The bill of exceptions discloses, I think, that it was practicable, though perhaps at considerable expense, so to deepen and cleanse the basin in question as to remove the cause of the nuisance. The point was not as fully investigated on the trial as it should have been, and I admit is left open to criticism ; yet the scope of the testimony given leads to the conclusion above stated. The bill states that there could be no effectual or permanent relief from the grievance complained of, unless the bulk-head, at the south end of the basin, is cut away; but may not the vigilant attention of the corporation in cleansing the basin answer the same end ? If an object so important as the health and comfort of the population in that part of the city can thus be attained, there is no good reason why this duty, in this respect, should not be rigorously enforced. The whole expense falls upon the owners of the pier lots, to which, no doubt, they would cheerfully submit, rather than risk the ultimate remedy referred to.

It would be a public calamity seriously to impair the existing advantages to *commerce and navigation derived from the use of the basin, and every reasonable effort should be made and required to remove the evil short of so serious a consequence.

The court, I think, erred in instructing the jury that the defendants were bound to abate the nuisance, even if to do so, it was necessary to cut down 'the, bulk-head; and it applied the maxim that the public safety is the paramounf.law. This is, no doubt, the only principle that could countenance or excuse the act required of the corporation, as the basin and its appurtenances were constructed under the authority of a law of the legislature, which they were competent to enact. It is the rule of necessity which supersedes all law, and to be sustained in this instance, if at all, by the overruling principle of self preservation. There is nothing in the charter of the city of Albany making it the duty of the corporation to enforce this maxim, nor are we aware that it is ever enforced by the authority of law, through the medium of the judicial tribunals, or any other legally appointed body of men. The law of the land does not contemplate such an exigency, and, therefore, does not provide for it—if it had, it would no longer be the undefined law of necessity. The duty of the corporation to deepen and cleanse the basin, does not authorize them to cut down the bulk-head; nor is there any other power given by the charter of which we know, or to which we have been referred, that would authorize them to do so. Without authority from this source, they are no more bound to perform the act by a supposed law of necessity for the protection of the public health or comfort than any individual citizen. They have no power but what' is derived from their charter, or special acts of the legislature, relating to the city of Albany.

Judgment reversed.  