
    William Albrecht, App’lt, v. Queens County et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    County—Liability.
    A county is not liable for the negligence of the board of supervisors in failing to maintain a bridge in a reasonably safe condition for public travel.
    Appeal from an order, sustaining a demurrer to the complaint.
    The opinion of Mr. Justice Bartlett on sustaining the demurrer is as follows:
    The only question argued upon the demurrer is whether a county, whose board of supervisors is charged by law with the duty of providing for the care, maintenance, and repair of a bridge, is liable for negligence in allowing the bridge to become out of repair. Under the decision of the court of appeals in the case of People ex rel. Keene v. Board of Sup'rs of Queens Bo., 142 N. Y. 271; 58 St. Rep. 580, it is quite clear that the county law imposed upon the board of supervisors of Queens county the duty of keeping in repair the bridge described in the complaint, upon which the plaintiff was injured. In behalf of the plaintiff, it is argued that a failure to fulfill this obligation renders the board of supervisors of each county liable, and consequently each county itself, inasmuch as the county law now expressly declares a county to be a municipal corporation, and provides that an action may be brought against a county in its own name to recover damages for any injury for which it is liable. Laws 1892, c. 686, §§ 2, 3.
    I am unable to see, however, how the position of a plaintiff in such a case as this has been aided by the enactment of the county law, or how his position is substantially different from what it would have been prior to that statute. It will be observed that the county can be sued in its own name only to recover damages from an injury “for which it is liable;” so that we come back to the question whether it is liable for such an injury as that set out in the complaint. Does the mere fact that the duty of care and
    
      repair is cast upon the board of supervisors make either the board or the county liable for a negligent failure to fulfill the duty imposed ? This question is answered in the negative by two cases cited in behalf of the demurring defendaht. Ensign v. Supervisors, 25 Hun, 20; Alamango v. Supervisors, id. 551. The first of these cases was an action growing out of injury to the plaintiff by reason of defects in a bridge over the Genesee river, which it was the duty of the county of Livingston to keep in repair. The general term of the third department said that they had not been referred to a case, and were not aware of ode, in which an action of that kind had been maintained against a county or town unless the right of action was expressly given by statute. The fact that there was no precedent for such a suit was declared to be strong evidence that no right of action existed. The court referred to the cases in which actions against municipal corporations may be maintained for negligence in respect to some ministerial duty imposed upon them by their charters, and pointed out that there is a distinction in this regard “between municipal corporations created by charter, and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns which, like assembly and senatorial districts, are mere political divisions, organized for the convenient exercises of portions of the political power of the state.” I do not think that the declaration in the county law that the county is a municipal corporation has really effected any legal change in the character of counties, so as to make them resemble the chartered municipalities, to which reference is thus made in the Ensign case. The counties remain, just as before, “mere political divisions, organized for the convenient exercise of portions of the political power of the state.” In the Alamango case the plaintiff attempted to make the supervisors of the county of Albany liable for the action of the authorities of the Albany penitentiary in unlawfully putting him at work under a circular saw. The general term of the third department held that there was no liability on the part of the supervisors, and sustained a demurrer to the complaint. “The duty of punishing criminals,” said Mr. Justice Bumsey, “is inherent in the sovereign power. It may be committed to agencies selected for that purpose; but such agencies, while engaged in that duty, stand so far in the place of the state, and exercise its political authority, and do not act in any private capacity. It is so in the laying out and maintaining of highways, the building of courthouses and schoolhouses, as well as in the building of jails and places of detention. In the performance of all such duties it is settled by the unanimous agreement of the courts that these agencies are not liable for neglect or misfeasance, unless the liability is especially imposed by statute.” It is conceded that there is no statute which makes either the county of Queens or its board of supervisors expressly liable for injuries due to neglect in not properly caring for and repairing bridges. In absence of any such enactment, and in view of the authorities cited, I think the demurrer is well pleaded, and the defendant is entitled to judgment. Judgment for the demurring defendant, with costs.
    Dailey, Bell & Crane, for app’lt; F. H. Van Vechten, for resp’t.
   Cullen, J.

This is an appeal from an order sustaining a demurrer to the plaintiff’s complaint. Theaction is to recover for personal in j uries sustained by the plaintiff in the falling of a bridge across Newtown creek, between the counties of Queens and Kings. The complaint alleged that it was the duty of the boards of supervisors of the two counties to maintain the bridge, and that the injury happened from the negligence of such boards in failing to maintain the bridge reasonably safe and secure for public travel. The question presented is whether the county is liable for the negligence of the board of supervisors in failing to discharge this duty. The opinion of the learned trial judge on sustaining the demurrer, in which we concur, leaves but little to be added by us. It is practically conceded by the counsel for the appellant that, prior to the enactment of the county law (Laws 1892, c. 686), no liability rested on the county for the malfeasance of the supervisors of the county officers. The same rule applied to towns. Towns in this state were not liable for failure to keep the highways in repair until the statute of 1885, and that statute created liability only in such cases as the commissioners of highways would have been personally liable in case of an action against them individually,—a very different liability from that imposed on cities and villages. Lane v. Town of Hancock, 142 N. Y. 510 ; 60 St. Rep. 112. The theory on which cities and villages were first held liable for defects in highways is stated in Conrad v. Trustees of Ithaca, 16 N. Y. 158, and Weet v. Village of Brochport Id. 161, note. It is not merely that they are corporations, but that they obtain, upon the request of their citizens, valuable fran, chises, and that, in consideration therefor; they undertake to perform with jidelity their charter obligation. This may be a fiction, as the legislature cannot incorporate a city without the consent of the inhabitants; but, nevertheless, the principle is too well settled in the law to be ignored. This principle is not applicable to counties which, while the statute may make them municipal corporations, are something more than such. They are political division's of the state, so recognized in the constitution, and beyond the power of the legislature to abrogate. The state, doubtless, can impose upon counties liability for neglect of county officers to perform local duties. But we think no such intent should be inferred from the mere fact that, in a general revision of law relating to counties, they are declared to be municipal corporations.

There is a further objection to the maintenance of this action,— there has been no audit of the plaintiff’s claim. From the earliest period in the history of the state to the present, it has been necessary to present claims against the county to the board of supervisors for audit. With some unimportant exceptions, dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be main■tained against the county for claims or county charges. The remedy was mandamus to the board of supervisors. If the claim was fixed by law, so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive, unless reversed on review, and could not be attacked collaterally. Osterhoudt v. Rigney, 98 N. Y. 222; Supervisors v. Briggs, 2 Denio, 26 ; People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Myers v. Barnes, 114 id. 317 ; 22 St. Rep. 164 and 23 id. 795. By subdivision 2, § 12, of the county act, the same power is still vested in the board of supervisors to annually audit all accounts against the county. If the plaintiff has a claim against the county, it must be submitted to the board of supervisors. The order appealed from should be affirmed, with costs and disbursements.

All concur.  