
    Patrick Walsh, respondent, v. The Mayor, etc., appellants.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 28, 1886.)
    
    Municipal corporations—Brooklyn bridge—Trustees.
    The trustees of the Brooklyn bridge are the trustees of the cities of New York and Brooklyn and not state officers, and the responsibility for injuries caused by workmen thereon rests if anywhere on those cities, unless it is upon the laborer whose carelessness caused the injury.
    Appeal from order overriding demurrer.
    
      David J. Dean, for appellants; Charles J. Patterson, for respondents.
   Brady, P. J.

The complaint alleges" that the defendants were, and each of them was a domestic municipal corporation duly incorporated; that on the 12th of May, 1883, they were engaged in the construction of a work known as the New York and Brooklyn bridge, through their agents and officers who were known as trustees, and which bridge was intended to and did span the waters of the East river and connect the two cities mentioned; that the defendants acting through the trustees as their agents, employed a certain laborer to assist in the construction of the bridge, and that while he was so doing and acting within the scope of his employment, he carelessly and negligently let a heavy plank of wood fall which struck the plaintiff as he was passing along Water street, a public highway in the city of New York beneath said bridge, and by which the bones of his feet were broken and he otherwise severely injured and bruised.

The defendants interposed a demurrer, alleging that upon the face of the complaint it appeared that it did not state facts sufficient to constitute a cause of action. The learned justice before whom the argument was had overruled the demurrer, expressing his views in an opinion which we think properly disposes of the question presented to him, and therefore meets our approbation and concurrence.

It appears from a report of the case of Walsh v. Trustees of the New York and Brooklyn Bridge (96 N. Y., 427), that in an action brought by the plaintiff herein against such trustees, the court of appeals expressed the opinion that the trustees weré either agents of the state or agents of the cities of New York and Brooklyn for the construction of the bridge. In other words, that they were not the legal superiors of the laborer, and were responsible only for their own misconduct or negligence. And the learned judge who wrote the opinion in that case asked the question— having arrived- at the conclusion that the trustees were not liable—“Who then is responsible to the plaintiff for his injuries? ” And he continued, “we will merely say that if responsibility for them (the injuries) rests anywhere but upon the laborer, whose carelessness caused them, it rests upon the two cities for whom the work upon which the laborer was engaged was being done. Whether they were his legal superiors, and thus responsible for his negligence, we do not at this time determine, as they have not appeared in this action and no argument has been made on their behalf.”

Several propositions are presented by the learned counsel for the appellant, leading to the conclusion substantially that the trustees were agents of the state and were not under the control of the municipalities in the construction of the bridge, and that, therefore, the defendants are not hable to the plaintiff for the injuries which he sustained.

The allegations of the complaint to which attention has been called seems to destroy the force of these suggestions, inasmuch as it is asserted that the trustees, as agents of the two cities, employed the person through whose carelessness the injury was occasioned. And assuming them to be such agents, there can be no doubt that, upon the doctrine of respondeat superior, the defendants would be hable; and this is substantially conceded by the learned counsel for the appellants. But his contention is that the trustees are independent of the corporation in the tenure of their office and the manner of discharging their duties, and are to be regarded as public or state officers, with such powers and duties as the state conferred upon them; in which latter case it must be conceded, without resort to any extended examination of the authorities, that the defendants would not be responsible. See Dillon on Corporations, vol. 2 (3d ed.), § 397.

The provisions in the act authorizing the construction of the bridge (chap. 399, Laws of 1876), conferring power upon the respective cities to appoint trustees, would seem in themselves sufficient to establish the proposition that they were the trustees of the municipalities mentioned and not state officers; and more particularly, as the cities respectively are bound to pay for the improvement, although the revenues of the bridge over and above its expenses are to be employed in the payment of the debt incurred by its construction.

Independently of these views we regard the intimation of the court of appeals in the case of Walsh v. Trustees, etc., supra, decidedly to be that the defendants are liable unless the responsibility rests upon the laborer whose carelessness caused the injuries, although they did not pass upon that question, as the defendants were not before them.

For these reasons, in addition to those stated in the opinion of Justice Lawrence, we think the judgment appealed from should be affirmed, with costs.

Daniels and Macomber, JJ., concur.  