
    Hickok vs. The Trustees of the Village of Plattsburgh.
    Municipal corporations are liable to a private action for injuries sustained in consequence of the misfeasance or nonfeasance of their officers or agents, only in cases where the duty to be performed is absolute, and due from the corporation; where ample means are placed at their disposal; or where they have undertaken the performance of a particular Work and have been held responsible for its complete and perfect execution; or where they were acting for the purposes of private advantage or emolument, and are to be regarded as a private company.
    Where the charter of the village of Plattsburgh declared the village to be a separate road district of the town of P. and transferred the duties of executing the highway laws from the tora to the village officers; and directed that the trustees of the village should have the same powers, and be charged with the same duties over the roads in the said village as comr missioners of highways in towns have or possess; Held that the trustees were .independent officers, so fa,r as their- duties as commissioners of highways were concerned, governed by the several acts of the legislature concerning highways; and that the corporation was not liable for their omission-to perform a duty imposed upon them by statute, as commissioners of highways.
    Accordingly hetd tnat the corporation was not liable for an injury sustained by a person in consequence of his falling, in the night time, into an open ditch or trench constructed in one of the streets of the village, and allowed-to remain open, without any protection, or guard.
    A village corporation is not liable for a nonfeasance, or a misfeasance, committed by independent corporate officers. It is liable it seems for injuries arising from an omission to repair streets, when the duty is due from it, and absolutely imposed upon it, as a corporation; but it is not liable for omissions of a duty specifically conferred, by statute, upon its_officers._
    This was an action brought against the village of Plattsburgh for the recovery of damages arising from an injury to the plaintiff’s leg, occasioned by his falling, in the night time, into ai$ open ditch or trench constructed in one of the streets of that village. The complaint alleged that on the 26th day of April,-1831, a certain district of country within the town of Plattsburgh, in the county of Clinton, and particularly described therein, was by an act of the legislature declared to be known and distinguished as" the village of Plattsburgh. The inhabitants of said village, were therein and thereby constituted a corporation by the name of the trustees of the village of Plattsburgh,with power and liability to sue and be sued, &e. That by the same act, the said village of Plattsburgh was constituted a separate road district, and exempt from the superintendence of the commissioners of highways of the town of Plattsburgh. The trustees of the village were made commissioners of highways for said village, and invested with the same powers and charged with the same duties over the roads in the village as commissioners of highways have over the town, That by a further act of the legislature, passed April 12,1848, the said trustees were invested with authority to lay ou-t, alter, make and open streets-, roads and alleys in the village, and to cause them to be opened or discontinued, when and as often as they should judge the1 public good required, and that all streets, roads and alleys which had been worked in the village, should be deemed public highways. That they were empowered by the same act to make bylaws, police regulations and ordinances for the clearing off and cleaning the streets and squares of said village; and that they did on the 17th January, 1849, make and publish a by-law or ordinance, whereby it was declared that it should not be lawful for any person to incumber, or in any manner obstruct the streets, alleys, lanes or side-walks of the village, under a certain penalty therein expressed, which by-law had hitherto remained and still was in force. That within the limits of the village there was a certain street known and designated as Church alley, which, for more than 50 years had been and was a common public highway, and previous to the 1st of April, 1848, had been worked by the said trustees in their capacity of commissioners of highways, and at that time had been used as a public highway. That on the 19th of October, 1849, there was a certain open trench or ditch in the said Church alley, extending from the north bounds thereof, nearly across the same. That the said trustees, well knowing the same, and their duty, maliciously, wrongfully, and contrary to their duty, permitted the said open ditch or trench to be and remain therein, and during the night time of that day, without fixing, replacing or causing to be placed any light, signal, guard or fenders at or near the ditch, and gave no directions to repair it, but left it in an insecure and dangerous condition; and in consequence of the malicious conduct and negligence of the said trustees, the plaintiff, who was then and there lawfully passing along said alley, necessarily and unavoidably, and without fault on his part, slipped and fell into the said ditch, and fractured his leg, and was rendered lame, sick and unable to attend to his business. That on the 19th of October, 1849, the said trustees had in their possession and under their control, or at their command, ample means and funds to repair the said ditch and render it safe.
    The defendants, in their answer, admitted the act of incorporation, but denied that they had claimed and exercised the powers conferred by it. They admitted that the village was made into a separate road district, but denied the statements and allegations in the complaint, relative to the making and publishing of the by-law. They admitted there was such a street as Church-alley, but denied that it had ever been worked, as alleged. They -denied that oh the 19th of October, 1849, there was- such a ditch in it as was complained of, or that they" maliciously of wrongfully permitted it to be open, and had no knowledge that the plaintiff was injured, as alleged. They alleged 'Church-street to be a private alley, and that it had never been worked by them as commissioners of highways. That Abram and Greorge Weble, who occupied a piece of land adjoining Church alley, in the month of October, 1849, dug a ditch therein, commencing at the north bounds, for the purpose of laying down a drain therein. That such ditch- was dug without their knowledge or consent, and they did not know it had been dug till after the accident; and that if the plaintiff ever fell, it was-within twelve-hours after the ditch was1 opened, and before it came to their- knowledge. That proper safeguards were erected and the ditch filled up as- soon as practicable. That if the plaintiff did slip and fall into the ditch, it was by reason of his own negligence and carelessness. The- plaintiff replied, taking issue on the several allegations- in- the answer, and the cause was-tried at the Clinton circuit: in July, 1851.
    . On the trial it was proved on the part of the plaintiff, 1. That by an act passed April 26, 1881, the inhabitants of the village of Plattsburgh were, created a municipal corporation, by the name of The- Trustees of the: village of Plattsburgh. That it embraced.within its limits, Church alley. 2. That- previous" to, and at the- time of the injury complained of, Church alley was, and for many years had been, used and worked as a public street, within the bounds of the corporation, and was- embraced in one of the road districts of the village, over which the trustees had for a long-time appointed an overseer. That previous to the time of the alleged injury, the overseer of that district had’ resigned, and another had been appointed. That at the time of the resignation there- was no commutation money or pecuniary-means- on hand, or under the control of the trustees or Over-; seers, but. that 800- days of highway labor out of 1000 days assessed im the village, for the year 1849, remained uncollected. This evidence was objected to by the' defendants’ - counsel, oh' the ground that'highway labor is not means, within any duties set up in the pleadings. The court received the evidence, and the defendants excepted. 3. That in the month of December, 1849, a ditch or trench, said to be for the purpose of building a drain about 3 feet wide and from 3 to 6 feet in depth, was dug by an adjoining proprietor, from the north side of Church alley, extending southerly across the side-walk, and the travelled part of said street or alley to the center, which was left open one or two nights. 4. That on the 19th October, 1849, the plaintiff, in passing along the center of the alley, without fault on his part, fell into the ditch, and broke one of the bones of his right leg, whereby he had ever since been lame, and seriously damnified in his business. 5. That one of the trustees knew of the existence of the ditch, and gave precautionary directions concerning it, calculated, as he stated he supposed, to prevent it being dangerous. 6. That evidence was produced by the plaintiff to show that the acting trustees or overseers of the village, or all of the officers, were guilty of negligence in permitting the ditch to remain open, without sufficient guards, in consequence of which the plaintiff was injured. 7. The original act of incorporation, together with the amendatory acts, passed respectively 26th April, 1833, 18th March, 1844, and 12th April, 1848, were introduced in evidence by the plaintiff. 8. The plaintiff also gave in evidence an ordinance of the corporation, known as Mo. 4 of the police regulations on the part of the corporation.
    The evidence being closed, the counsel for the defendants moved for a nonsuit, on these grounds: 1. That admitting the existence of a ditch in the public street of the village, and that the plaintiff fell therein and broke his limb, for the reason that the ditch was not filled up in time or properly guarded, yet the plaintiff had totally failed to show any obligatory duty upon the inhabitants of the village as a corporation, to fill up the same, or erect a guard, or abate the nuisance. 2. That such duty, if any existed, was charged upon the trustees of the corporation, who for .that purpose were independent officers, for whose conduct the defendants were not responsible. 3/ That the defendants were not liable for damages resulting from an injury occasioned by obstructions to or non-repair of the streets of the village. The court granted the motion, and nonsuited the plaintiff; and in delivering his opinion the judge ruled and decided, 1. That Church alley was a public road, street and highway within said corporation. 2. That as it would have cost but a few shillings, the highway labor assessed and not worked constituted sufficient means to have removed the obstructions and abated the nuisance. 3. That the trustees had knowledge of the existence of the nuisance, and that if the defendants were by law bound to repair, negligence must be presumed, for the purpose of deciding the motion. 4. That the trustees, under the 14th section of the original act of incorporation, were merely commissioners of highways, and that the overseers by them appointed, thereunder, were merely overseers, and that the defendants were not liable for their acts, or any of them, as such commissioners or overseers. 5. That the obstruction complained of was a nuisance, within the meaning of § 5 of the original act of incorporation; that the trustees had the power, under said section, to abate such nuisance, and should have done so. 6. That the trustees were independent officers, charged with a specific duty in regard to streets, roads and highways, and that the discharge of such duty was for the benefit of the public at large, and not exclusively for the benefit and advantage of the corporation, so as to render the defendants liable in this action.
    The counsel for the plaintiff excepted to the rulings under the 4th and 6th propositions, and a motion was now made to set aside the nonsuit, and for a new trial.
    
      W. A. Beach, for the plaintiff.
    
      L. Stetson, for the defendants.
   By the Court, C. L. Allen, J.

By the facts detailed in the bill of exceptions it appears that the defendants are a municipal corporation, created by the act of April 26,1831, under the name of “The trustees of the village of Plattsburgh.” That the village was erected into a separate road district, exempt from the superintendence of the commissioners of highways of the town of Plattsburgh, and the trustees of the village were created commissioners of highways, and were clothed with the game powers, and charged with the same duties, over the roads of the Village, as commissioners of highway in towns have or possess. That they were authorized to and did divide the village into separate road districts, and appointed an overseer over each. That the ditch was dug in October, 1349, into which the plaintiff fell, without fault on his part, and received the injury complained of. That one of the trustees knew of the éxistence of the drain, and evidence was given of negligence in not abating the nuisance. The bill also states that the trustees and overseers had abundant means to remove the obstruction. The main question, therefore, arising in this case, is whether the village corporation is liable for the acts of the trustees, or of the overseers, or rather, for the negligent acts of third persons.

The question is an important one, and does not seem to have been fully decided in any of the numerous cases which have been considered as having a bearing upon it. Those cases, however, appear to have established one principle, and that is, that in order to charge a corporation in an action for negligence, in the performance of a public work, the law must have imposed a duty upon it, so as to make that neglect culpable. So it may be said-a village corporation is not liable to an action for the non-repair of streets, unless an absolute duty to repair is due from it by the terms or conditions of its charter, or is presumable from prescription. This duty must be averred in the complaint, and proved upon the trial. Thus the complaint in this case, after a general averment of power and jurisdiction of the trustees over the streets, roads and alleys of the village of Plattsburgh, and particularly over Church alley, alleges that on the 19th of October,' 1849, there was a certain ditch or trench dug in the street called Church alley, &c. Yet the said trustees of the said village of Plattsburgh, well knowing the premises and their duty, wrongfully, maliciously, neglectfully, unjustly, and contrary to their duty in that behalf, permitted the said open trench or ditch to be and continue therein and during the night time of that day, without fixing or placing or causing to be placed or fixed, any light or signal or guard, &c. around said trench, <fec.; and in consequence of which said negligence, and improper and malicious conduct of the said trustees,” the disaster happened. There can be no doubt, I think, that this principle is well and abundantly established. (Mayor of Linn v. Turner, Cowper, 86. Henly v. Mayor of Lime, 5 Bing. 91; S. C., 1 Bing. N. C. 222, in error. Mayor of New-York v. Furze, 3 Hill, 612. Mayor of Albany v. Cunliff, 2 Comst. 165.) This point being established—and I did not understand that it was seriously disputed, on the argument—the next question is whether such a duty is imposed upon the inhabitants of the village of Plattsburgh as a municipal corporation, so as to render them liable in this action. The 1st section of . the act designates and bounds the village; the 2d declares it to be a corporation by.the name of the trustees of the village of Plattsburgh; the 3d section prescribes the mode- of electing village officers. The inhabitants, at their annual meeting, are empowered to elect by ballot, five trustees, three assessors, a clerk, treasurer and collector. The said inhabitants, at the same meeting, may vote to raise by tax-$500 in any one year, specifying the purposes for which such tax is intended, and to which it shall be applied; and may determine the compensation to be allowed to any officer of the village. The 5th section enacts that “ the said trustees may make, enact and publish, and repeal and amend by-laws, police regulations and ordinances for clearing off and cleaning the streets, alleys, highways and public squares,” “to prevent, abate or remove nuisances,” and to enforce obedience to all such by-laws, police regulations and ordinances by a penalty not exceeding $15, to be sued for in the corporate name, and when recovered to be paid to the treasurer, for the use of the village.

The 16th section declares that the said village of Plattsburgh shall be a road district and shall be exempt from the superintendence of the commissioners of highways of the town of Plattsburgh, and that the trustees of said village shall be cominissioners of highways, and shall have the same powers and shall be charged with the same duties, over the roads in said village, as commissioners in towns have or possess.

Tt has been repeatedly decided, both in England and in this country, that corporations possess no powers except those which are specifically granted by their charter. No power can be taken by implication; it must be conferred by statute. The power conferred by the 5th section, can only be enforced in the manner pointed out by the act. They are merely of a legislative character; to make, enact, publish and amend by-laws for clearing off and cleaning the streets, alleys and highways, and to prevent, abate, or remove nuisances. It is,” say the court in Boom v. The City of Utica, (2 Barb. S. C. Rep. 104,109,) a mere grant of authority to adopt general rules and regulalations respecting the removal of nuisances.” And see Camden and Amboy R. R. and Transportation Co. v. Remer, (4 Barb. 127 ;) Halstead v. Mayor of New-York, (3 Comst. 430;) Hart v. Mayor &c. of Albany, (9 Wend. 571, 588;) Hodges v. City of Buffalo, (2 Denio, 110;) Dunham v. Trustees of Rochester, (5 Cowen, 462.) By these cases it is established that a corporation, when it proceeds to do an act, must show its power, and bring itself within it, by proof. The 16th section of the act declares the village to be a separate road district of the town of Plattsburgh, and transfers the duties of executing the highway laws from the town to the village officers. “ They shall have the same powers, and be charged with the same duties over the roads in the said village, as commissioners of highways in towns have or possess.” They are therefore independent officers, so far as their duties as commissioners of highways are concerned, governed and controlled and directed by the several acts of the legislature regulating highways. They are, to be sure, for certain purposes officers of the corporation, and when acting for the benefit of the corporation, it may be liable for their acts; but not when they are acting as independent officers, whose duties arc specifically prescribed by law. In the case of The Mayor &c. of New- York v. Badley, (2 Denio. 433,) it was held that an action on the case for malfeasance will lie against a corporation ; and that a municipal corporation was responsible for the negligence or unskillfulness of its agents and servants-when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. In that case a recovery was had against the corporation of the city of New-York for injuries occasioned to third persons, by the negligent and unskillful construction of a dam on the Croton river ; it appearing that the title to the land upon which the same was erected, was vested in the corporation. The recovery was based upon the express ground that the dam was the property of the corporation, and that such corporation was legally hound to see that its corporate power was not used by any one,so as to become noxious to the occupiers of property on the river below. And the court remarked that although the corporation did not appoint the water commissioners who constructed the dam, and although they had no right to interfere in the appointment or removal of the engineers and others who were employed-in the construction of the work, nor even to withhold the payment of their wages, yet the case was likened to a man who has-work going on upon his own premises and for his own benefit, and who must be civilly answerable for those whom he employs ; that it shall he intended that he has control over those who work upon his premises, and he shall not be allowed to dis-charge himself from that intendment of law, by any act or contract of his own. The court remark u That a municipal corporation, though not liable for acts- requiring the exercise of discretion, when those acts are for the benefit of the public ; or for the acts of independent officers whom it is obliged to appoint,- and whose duties are specifically prescribed by law, yet it is liable for the acts of the agents it voluntarily employs, to do-business for its own private benefit, the same as any other corporation or individual.” (See cases there cited.)

Now under whose control, and under what power, do the trustees act, when in the performance of their duty as commissioners of highways 1 Clearly by the act of incorporation, under the several acts regulating highways. They- are to have the same' powers and be charged with the same duties over the roads, -in-the said village," as commissioners of highways in towns have or possess.”

By the act in relation to highways the powers and duties of commissioners are extensive. It is their duty to take upon themselves the care and superintendence of the highways and bridges ; to give directions for repairing , to regulate roads already laid out, to cause highways and bridges which are or may be erected over streams intersecting highways, to be kept in repair ; and to do and perform various other duties required by the act. The trustees, as such commissioners, are an independent set of officers, having certain powers and charged with certain duties altogether without and beyond the control of the village corporation, in relation to the roads therein, and subject to certain fines and penalties for the nonperformance of their duty. Among other things they are required to prosecute any overseer against whoin complaint shall be made, for neglect of his duty, in the manner directed by that act. It has been decided by this court that authority so important, when conferred upon village trustees, is not to be crippled by a narrow construction of the statute. And it was accordingly held, in Graves v. Otis, (2 Hill, 466,) that where the charter of a village declared it to be a road district, and that the trustees should be commissioners of' highways with the same powers, and charged with the same duties, over the roads in the village, as are possessed by commissioners of highways of towns, the defendants might justify the cutting down Of a side walk in front of the plaintiff’s store, in their ‘capacity of commissioners of highways; notwithstanding the defense failed, under an ordinance of the village, and their whole acts under the ordinance were declared void. It was held in that case that the side walks of the village were no less under the superintendence of the trustees, acting as commissioners, than that part of the street used for traveling purposes generally, and that the trustees might work and improve every part of the territory included within the street, being responsible only for wanton or malicious conduct, by which others were injured. Here then they were recognized as independent officers, and their defense sustained wholly on the ground that they were such, and acted under an authority not contained in the village charter. It was not pretended in that case that the village was liable for the acts of the trustees. The action was sought to be maintained against them alone.

I apprehend it cannot be successfully argued that the village of Plattsburgh is liable for the acts or negligence of persons acting in an official capacity, under a separate and independent statute over which they have no control or direction. Suppose in this case the trustees, as commissioners of highways, had directed the ditch in Church alley to be opened for certain purposes ; or if the hole having been occasioned by flood or other accident, they had neglected to fill or cause it to be filled up for two days, during which the accident complained of had happened. Could it be contended that the village was liable for the damages'? I apprehend not; and yet, if the plaintiff’s argument is to prevail such liability would exist. .Such is not the decision, as I understand it, in The Mayor of New- York v. Bailey, and the other cases upon this point.

This view, that as commissioners of highways they are independent, is strengthened by a review of the case of Mitchell v. Halsey, (15 Wend. 241.) That was a case for encroachment on highways within the village of Sag Harbor. The jury who found the encroachment, had been summoned at the instance of the trustees of that village, and one ground taken on certiorari was that the trustees were not authorized by law to institute the proceedings. By an act of the legislature, passed in 1819, certain powers were vested in the freeholders and inhabitants of the port of Sag Harbor.” They were authorized to elect trustees. By the 13th section of the act the village was made a separate road district, and the trustees made commissioners of highways, as iy the charter of the village of Plattsburgh. The highway act in force at the time of the passage of the law was the act of 1813. The act of 1830 revised the act of 1813, and repealed it; declaring that all acts in force in relation to highways ” (on Long Island) should be repealed. It was argued that this repeal abrogated the act of 1819, conferring the powers of commissioners on the trustees of Sag Harbor. But the court decided otherwise; remarking that the section in force when the act incorporating the village passed, was still in force, and that the act of 1830 was intended simply to abolish the old general system, of which the one then about to become a law was a substitute. This case not only establishes the position that when acting as commissioners these officers are independent, but also shows that any change in the highway laws relating to towns, produces a like change in the powers and duties of the village officers when acting in relation to highways. (And see Otis v. Graves, before cited, and Ontario Bank v. Bunnell, 10 Wend. 186.)

We are thus brought to the position which must be assumed in order to sustain this actionthat a municipal corporation is liable not only for the negligence of certain of its officers when not acting within the scope of their authority as such officers, but also for acts of nonfeasance or malfeasance under a statute entirely independent, conferring entirely separate and independent powers, and creating separate liabilities for neglect of duty. This position cannot be maintained. A village corporation is indeed a body politic, and liable, undoubtedly, to an action when incurring a debt through its corporate officers acting within the line of their duty, but not for a nonfeasance or a misfeasance committed by independent corporate officers. They might be liable, and probably would be, within the case of Mayor of Linn v. Turner, (Cowp. 86,) for injuries arising from omission to repair streets, when the duty was due from and absolutely imposed upon them as a corporation. But I can find no case where they have been held liable for omissions of a duty specifically conferred by statute upon their officers. “ The relation,” (say the court in Martin v. Mayor of Brooklyn, 1 Hill, 545, 551,) does not exist between the corporation and officers; certainly not so nearly as that between a postmaster-general and his deputy, and yet the former is held not liable for the nonfeasance of the latter, though he hold by the appointment of the former.” “Iri regard to highways or streets in the village, the trustees are to obey the statute like town commissioners.” (And see Story on Agency, 319, 320, 321, and notes; Clark v. Mayor, &c. of Washington, 12 Wheat. 40.) The duty of repairing the streets does not devolve wholly upon the corporation of the village. It is common with the inhabitants of the town, and has no separate existence. For all highway purposes the village remains a portion of the town, and must pay its share in common with the rest of the town, of all moneys raised for roads, as well for those that lie without as those that are within the corporate limits. An indictment must be against the whole town though part of the road complained of was without or within its limits. (5 Term Rep. 498. 8 Barb. 645.) It would seem to follow from this that if a village corporation can be made liable in an action like the present, then towns, for the same reason, could be made liable in their corporate capacity. Towns can sue and be sued, and the liability for not repairing would be as conclusive upon the one as the other. In the case of towns, however, the question has been fully settled, in the case of Morey v. The Town of Newfane, (8 Barb. 645,) where it was held that no action lies against a town for an injury to a person’s horses occasioned by the suffering of a public highway or road to become out of repair, and in a ruinous and unsafe condition, and that the remedy against the town would be by presentment merely, It was insisted in that case that the common law duty of keeping roads in repair as it devolves upon the parishes in England, was in this state transferred to and imposed upon the towns. But the court remarked that it was difficult to see how this common law obligation, founded on prescription or immemorial usage, could be made to attach to bodies of-modern statutory creation unknown tp the common law, That the corporate powers of towns were clearly and fully defined, and that the law would not impose a duty where the means of performing it did not exist; and the question was asked, with much force, what control have towns, as such, over the repair of roads ? They choose the commissioners of highways, but then their power ceases. The statute gives to the commissioners themselves, in express terms, the care and superintendence of the highways and bridges of the town, and confers upon them all the powers requisite to the. execution of their -trust. They are in no way responsible to the town, but are themselves a species of quasi corporation, with power to sue and be sued, having legal succession, and deriving all their authority, not through the towns, but directly from the statute. The towns have no power to give the slightest direction or instruction to these officers, as to the performance of their duties.” The learned judge then proceeds to show that the commissioners themselves are only responsible conditionally, that is, when they are provided with funds ; citing 2 Hill, 619, 7 Wend. 474, and 6 Hill, 463, and saying that towns cannot be held absolutely liable. In Bartlett v. Crozier, (17 John. 439) Ch. J. Kent doubted whether an action would lie at all against commissioners, and rather came to the conclusion that the only remedy was by indictment.

In other states, as in Massachusetts, Vermont and New Hampshire, the action has been maintained because it was expressly given by statute. (9 Mass. Rep. 247. 20 Maine Rep. 246. 17 Conn. Rep. 175. 1 Vermont Rep. 353. 2 N. Hamp. Rep. 105.)

It is argued by the counsel for the respondent in this cause, that if the trustees are to be considered as independent officers the whole doctrine of- respondeat superior is annihilated, in its application to municipalities. On what principle is that axiom bottomed 1 As I understand it, it is this: that he who expects to derive advantage from an act which is done by another for him, must answer for any injury which a third person may sustain from it. (2 Bing. 359.) It will-not do to apply this maxim to the case of all public officers and agents. They are not to be held -responsible for the nonfeasances or negligence of their subordinates or agents, as in the case of the postmaster general before alluded to. It is against public policy to make public officers liable for the acts of those whom they are obliged to employ; especially where they have no control over these acts, and do not derive exclusive benefit from them. If the doctrine were applied-to such agencies it-would operate as a serious discouragement to persons who perform public functions, many of which are rendered gratuitously, and all of which are highly important to the public. (Story on Agency, 319, 320, 321.) The same doctrine is applicable in the case of municipal Corporations. They are liable for the acts of their agents voluntarily employed to do business for their own private benefit, the" same as any other corporation or individual. In Bailey v. Mayor, &c. of New- York, (3 Hill 531; 2 Denio, 633,) it was held that a municipal corporation in its private character as the owner of lands and houses, is to be regarded in the same light as an individual, and dealt with accordingly. In that case the city was held liable; the court however conceding the point that if the powers exercised had been Conferred for public purposes, and not for the private benefit ánd emolument of the corporation, it would not have been liable.

It is further contended that the mayor and common council of the city are elected in the same manner as,these trustees, with duties as specifically prescribed; and that the city has been held liable under similar circumstances, and’ that no distinction exists between the two cases. The case of The Mayor of Albany v. Cunliff, (2 Comst. 165,) does not sustain the counsel in this position. The principle there decided confirms the views already taken, that to charge a corporation for negligence in the performance of a public work, the law must have imposed a duty or conferred an authority, to do the work. And in that case the judgment obtained against the corporation was reversed, because there -was no duty or obligation to repair, and because the corporation had no right to make the repairs. So the ease of The Rochester White Lead Co. v. The City of Rochester goes no further than has already been conceded, that if a municipal corporation, acting within the scope of its powers, directs the construction of a work, it must see that it is done in’ a safe and skillful manner; and even then it is there doubted whether an action could be maintained, unattended by any circumstances of neglect or malice. We are not now considering the point, how far the trustees Would be liable as commissioners of highways, in this action. In Bartlett v. Crozier it- was doubted whether they would be liable under any circumstances. It has not been expressly adjudicated, but the* current of authority rather seems to favor the idea, that when . they have means in their hands, arising from penalties and forfeitures or otherwise, they will he liable for the consequences arising from a neglect to repair. The court, here, found that they had the means in their hands, and ought to have removed the obstruction. They had the means, or the power to have them, by assessing and raising a sufficient amount. (4 Hill, 630.) But if they are liable at all it is as commissioners of highways, or as individuals. The case of Huston v. Mayor of New- York, in manuscript, cited by the counsel for the plaintiff, Aras put upon the ground that the fee in the streets of that city, when laid out by commissioners of streets and roads, is vested in the corporation, and the regulation of them- is subject to their entire control. Not so with the roads and highways on the island. The corporation, as to them, was conceded to have been commissioners of highways, and that as to them they acted as such commissioners, and the city would not be liable for neglect of duty by the commissioners as such. And the case of The Mayor of Albany v. Cunlifj, is cited with approbation by the learned judge who delivered the opinion of a majority of the court in that case, and he remarks that the court has decided, in the case of Griffin v. The Mayor, &c. of New-York, that the defendants were not liable to a private individual for injuries sustained in consequence of rubbish being thrown out in the street by third persons; it not appearing that the corporation, or any of its officers, were notified of the fact and required to have the rubbish removed. So too in the case of Holcomb v. Mayor of Troy, Justice Harris placed his decision, at least in part, upon the ground that the street having been opened, the fee thereof became vested in the corporation, and that the city authorities had exclusive jurisdiction over the streets.

On the whole, I am led to the conclusion that municipal corporations have been held and are liable to a private action only in cases where the duty to perform was absolute, and due from •the corporation; where ample means are placed at their disposal ; or where they have undertaken the performance of a particular work and have been held responsible for its complete and. perfect execution; or where they were acting for the purposes of private advantage or emolument, and were regarded as a private company. That neither of these positions apply to the village of Plattsburgh. The duty of the trustees, as commissioners, was imposed upon them, for the benefit of the public at large, and not for the exclusive benefit of the village ; and the corporation is not liable for an omission to perform such duty oil their part as independent officers, acting under and subject to a law over which the corporation has no control.

[Schenectady General Term,

January 3, 1853.

Willard, Hand, Cady aud C. L. Allen, Justices.]

I think therefore that the judgment of the circuit court should be affirmed.

Judgment affirmed.  