
    PEOPLE ex rel. RYAN v. CIVIL SERVICE, &c., BOARDS OF N. Y.
    
      N. Y. Supreme Court, First District; Chambers,
    December, 1885.
    Mandamus; paeties bespondent.—Civil Sebvice; N. Y. City; EMPLOYEES OF AQUEDUCT COMMISSIONEBS, UNDBB L. 1883, c. 400.—Municipal Cobpoeations ; liability.— Amendment; pabties.
    Aqueduct commissioners appointed by L. 1883, c. 490, § 1, for supplying the city of New York with an increased supply of water, are local officers whose functions are for the peculiar corporate and pecuniary benefit of the city, and not State officers; and, therefore, their appointees and employeés are to he examined, under the Civil Service Statutes, by the Civil Service Supervisory and Examining Boards of the city of New York, and not by the State Civil Service Commisssoncrs.
    The employees of the aqueduct commissioners under this act, are not exempt from a civil service examination.
    
      It seems, that, under the adjudicated cases, the corporation of the city of New York is liable for the acts of the aqueduct commissioners.
    
      The Civil Service Supervisory and Examining Boards of the city of Hew York, are not incorporated, and the individuals who compose the board should be designated in the application for a mandamus to compel their official action.
    But the error in an' application for mandamus in naming the board instead of the individuals composing it, may be cured by amendment.
    Mandamus.
    Bichard W. Byan made this application for a peremptory mandamus to compel the Civil Service Supervisory and Examining Boards of the city of Yew York, and Charles H. Woodman, the secretary thereof, to entertain the relator’s application, and notify him to appear for examination pursuant to the Yew York city civil service regulations.
    It appeared by the affidavit of the relator that he had applied to the secretary of the boards for examination for employment by the commissioners for building the new Croton aqueduct, and that his application had been refused on the ground that the said commissioners are not officers of the city of Yew York, and their employees are not included within the civil service of the city of Yew York. It appeared also from the papers submitted on the part of the relator, that in the month of August, 1884, the mayor of the city arranged a certain classification of the civil service of the city of Yew York, and that in such classification were included the clerks and employees of the aqueduct commission, and that such employees were so included after consultation with the State civil service commissioners, and upon their advice that such employees were persons in the employ of the city and not of the State. It appeared from the papers read by the counsel to the corporation that the contrary opinion has been expressed by him and his predecessor in office ; and this proceeding has been brought for the purpose of determining whether officers and employees of the aqueduct commisson are subject to the civil service regulations of the city, or, to those prescribed by the State civil service commissioners.
    
      F. W. Whitridge (Cary & Whitridge, attorneys), for the relator.
    
      D. J. Dean (E. Henry Lacombe, counsel to the I corporation), for the respondents.
   Lawrence, J.

—It cannot be disputed that the aqueduct commissioners are new officers, and that at the time of the passage of chapter 490 of the Laws of 1883, creating such commissioners, there were no officers in existence in the city government who were authorized to exercise the powers confided to said commissioners by said act. This, however, is not conclusive upon the question whether the commissioners are to be regarded as State or city officers.

Nor does the case of People ex rel. Wood v. Draper (15 N. Y. 532) determine the question which is here presented for consideration. That case holds that section 2, article 10 of the constitution of 1846, leaves the legislature at liberty to provide for the election or appointment, in any manner it may deem suitable, of all officers, local or general, whose offices might thereafter be created by law; and also of all other than county, city, town or village officers whose offices were then in existence, but the mode of whose election or appointment was not prescribed by the constitution. Under that decision, the legislature may create a new city office and may'prescribe the manner in which the same may be filled, whether by election or appointment, or in any manner if may deem suitable.

The case of Metropolitan Board of Health v. Heister (37 N. Y. 661), is to the same effect (see also People v. Pinckney, 32 N. Y. 377, 382).

Some light may, however, be thrown upon this question by the decisions which were made by the supreme court and late court of errors, in relation to the liability of the city of New York, for acts done or omitted by the water commissioners appointed under the acts of 1833 and 1834, under which the Croton water was first introduced into this city. The powers conferred by those acts upon the commissioners therein provided for were very similar, although not specified in the acts so much in detail,as those confided to the aqueduct commissioners of 1883.

In Appleton v. Water Commissioners of N. Y. (2 Hill, 432), it was intimated, although not expressly decided, by Bronson, J., in delivering the opinion of the court, that the remedy on the contract made by such commissioners was against the corporation of the city of New York.

In Bailey v. Mayor, &c., of N. Y. (3 Hill, 531, 538), it was held that the commissioners appointed under the act of 1834, though appointed by the State, were the agents of the corporation, and that the latter was, therefore, liable for injuries sustained by the plaintiff’s land, arising from the careless and unskillful construction of a dam across the Croton river. That case subsequently went to the court of errors, and is reported in 2 Denio, 433, as Mayor, &c., of N. Y. v. Bailey, and it was held that the corporation was liable to third persons for injuries sustained by them by the negligent and unskillful construction of the dam in question.

If these cases have not been restricted or modified by subsequent decisions, it would appear that the aqueduct commissioners, although appointed by the legislature, are the agents of the city, and, if the agents of the city, that they are within the provisions of the acts in relation to the civil service of'the city.

It is said, however, by the learned counsel to the corporation, that this case is within the principles stated in Russell v. Mayor, &c. of N. Y. (2 Denio, 461); Martin v. Mayor, &c. of Brooklyn (1 Hill, 545), and N. Y. Brooklyn Saw Mill, &c. Co. v. City of Brooklyn (71 N. Y. 580).

In Martin v. Mayor, &c. of Brooklyn (1 Hill, 545), it was held that a municipal corporation is not liable for the misfeasance or nonfeasance of one of its officers in respect to a duty specifically imposed by statute on the. officer; otherwise if the duty is one imposed absolutely on the corporation as such. In 'that case, the plaintiff sued the corporation of the city of Brooklyn, alleging that while Brooklyn was a village the president and trustees instituted proceedings for the purpose of laying out certain streets, and went on to an assessment of damages pursuant to the statute ; that a sum was awarded to the plaintiff for his land, proposed to be taken, and that the commissioners of estimate, &c., reported to the trustees, and that the proper notices were given and published, but though no appeal was interposed they had willfully omitted the duty of .causing the report to be filed with the clerk of the common pleas of Kings county, so that it could be confirmed. It was also alleged that the board of trustees, after the assessment was returned, resolved that it was expedient to open the streets, provided the parties interested would waive the first report, the filing of the same, and the appointment of commissioners ; and that a committee should be appointed to treat and agree with the owners of ground required for the streets, and the plaintiff consented to such waiver, in writing, was willing, &c., and gave notice, &c., but that the trustees refused to proceed in the fulfillment of the agreement.

The court held in that case that municipal corporations were not liable for omissions of duty specifically imposed by statute on one of their officers; that in that respect the latter are quasi civil officers of the government though appointed by the corporation, and that the relation of master and servant did not exist between the corporation and the officers.

In Russell v. Mayor, &c. of N. Y. (12 Denio, 461), it was held that the mayor and aldermen, in making an order for the destruction of a building, pursuant to the statute, did not act as the officers or agents of the corporation, but as magistrates designated by the legislature for the execution of a public duty. In that case Porter, Senator, in his opinion, distinguishes the case of Bailey v. Mayor, &c. of N. Y., from that of Bussell, on the ground that in the former case “ the corporation had an interest in the grant made by the lawthat “it held a large amount of property under it; had passed ordinances in respect to the execution of the work and the doings of the commissioners; and in every respect had made the work their own, and consequently had made the commissioners their agents.” In N. Y. & Brooklyn Saw Mill, &c. Co. v. City of Brooklyn (71 N. Y. 580), it was held that “a municipal corporation is not liable for the acts or omissions of an officer, elected or appointed by it, in respect to a duty specifically imposed upon the officer, which is not connected with his duties as agent of the corporation and in which it has no private interest.” That “it is only liable for the acts or omissions of officers in the performance of duties imposed upon the corporation.” The complaint in that action alleged in substance that “By an act to improve the Gowanus canal, in the city of Brooklyn (chap. 678, Laws of 1866, and the acts amendatory thereof; chap. 884, Laws of 1867; chap. 793, Laws of 1869), commissioners were appointed to dock the sides of said canal, the expense to be assessed upon the property; that the commissioners caused docks to be erected m and upon plaintiff’s land, adjacent to said canal, but prosecuted the work so negligently that the dock sank; that by an act passed in 1871 (chap. 839, Laws of 1871), it was provided that the common council of the city should cause the docks to be repaired or rebuilt at the expense of the city ; that thereby the duty to rebuild the dock on plaintiff’s land was imposed upon the city, which it had neglected to perform, to his damage, &c.” Upon demurrer to the complaint it was held that the court “could not take judicial notice that the canal was a public highway, and in the absence of allegations to that effect could not presume it to be such ; that so far as appeared, the work was for the benefit of individuals solely ; that it appears by the amendatory act of 1869, to have been the intention of the legislature to substitute, the common council for the commissioners, without affecting the relations of the city to the work ; that both bodies were to be regarded as the agents of the State, not of the city, and for their acts or omissions the city was not liable ; that the act of 1871 did not impose the duty of rebuilding upon the city, but the directions therein to the common council, it was to be presumed, were given to them as State agents, and that therefore the city was not liable.” It was also held “that the fact that the expense of rebuilding was cast upon the city, did not affect its liability.”

It will be observed, upon examining the three cases last cited, that they are placed upon the ground that the work to be done was not a corporate work, but was either a work for the benefit of private persons, or directed to be done by the statutes of the State, having no relation to corporate duties or interests.

In the last case, Churoti, Ch. J., at page 584, says: “ A municipal corporation is held liable for the acts of an agent it employs to do business for its own corporate or private benefit, the same as a private individual, and this, although the agent may be appointed by the legislature or under legislative authority, if it accepts and ratifies the .appointment,” and he cites approvingly the case of Appleton v. Water Commissioners of N. Y. (2 Hill, 432, 433), to which I have above referred. He also says that: “ We have recently held that a municipal corporation is not liable for the omission to perform, or for negligence in the performance of a public duty laid upon an independent officer, in which it has no private interest, and from the performance of which it derives no special or corporate benefit, although it is required to elect or appoint such officer, and although the officer has in charge, and the negligence imputed is the use of property owned by the corporation,” citing Maximilian v. Mayor, &c. of N. Y. (62 N. Y. 160), and other cases.

Folger, J., in delivering the opinion of the court in Maximilian v. Mayor, &c. of N. Y. (62 N. Y 170), after having referred to certain cases, and among others to that of Bailey v. Mayor, &c. of N.Y. (2 Denio, 433), says, at page 170 : “ It is not always easy to say within which class a particular case should be placed. But when it is determined that the power and duty are given and taken for the benefit of the corporation as a corporate body, and the act to be done is to be done by it through agents of its appointment and under its control and power of removal, there is no doubt of its liability for negligent omission or negligent attempt at performance When the powers created' and duly enjoined are given and laid upon officers to be named by the corporation, but for the public benefit and as a convenient method of exercising a function of general ■ government, and the corporation has no immediate control nor immediate power of removal of those officers, .nor of their subordinates and servants, then it is not liable for their negligent omission or action.”

In that case, it was held that the city corporation was not liable for the negligence of an employee of the Commissioners of Charities and Correction in driving an ambulance wagon belonging to the city which struck and caused the death of the plaintiffs intestate, and it was held that the duties of such commissioners were public in their character, and that from their performance no special corporate benefit was derived.

Is it not, however, clear that from the work to be performed by the aqueduct commissioners a special corporate benefit will be derived by the city of New York, and can it not with much force be urged that, under the decision in the Maximilian case and the cases of Bailey v. Mayor, &c., and Appleton v. Water Commissioners (supra), the aqueduct commissioners, though appointed by the State, are to be regarded as agents of the city, and therefore, city officers ? As I have already said, the duties which were to be performed by the water commissioners under the acts of 1833 and 1834, were very similar to those confided to the aqueduct commissioners under the act of 1883, and it seems to me that if the former commissioners were regarded as the agents of the city the latter must be also.

By sections 1 et seq. of the act of 1883, chapter 490 (p. 666), the may'U’, comptroller and commissioner of public works, and certain individuals therein named, are appointed commissioners for the purpose of supplying the city with an increased supply of pure and wholesome water. The salary of the commissioners is to be fixed bv the board of estimate and apportionment. The commissioner of public works is to prepare plans, &c., which are to be submitted by him to the commissioners, who may adopt, modify or reject the same in whole or in part. The plans are to be filed, &c. ' Maps are also to be prepared by the commissioner of public works, to be filed as in the act specified ; and the counsel to the corporation for and on behalf of the mayor, aldermen and commonalty of the city of New York, is required to apply to the supreme court for the appointment of commissioners of appraisal, to appraise the compensation to be made to the owners, &c., of the real estate proposed to be taken, &c., for the purpose indicated in the act-." The fee of the lands taken is to be vested in the mayor, aldermen and commonalty of the city of Few York. The corporation counsel is to present the report of the commissioners for confirmation. The awards made by the commissioners, when confirmed, are to be paid by the city within four months. In case of default, a right of action therefor is given to the party in whose favor the award is made. It is also provided that the aqueduct commissioners, subject to the approval of the board of estimate and apportionment of the city of Few York, may agree with the owners, &c., as to the amount of compensation to be paid to such owners for the taking or using and occupying of real estate.

By section 25 of the act, upon filing the oath of the commissioners of appraisal, &c., the commissioner of public works shall, from time to time, as may be necessary, prepare and- submit to the aqueduct commissioners and to the counsel to the corporation, forms of contracts and specifications and bonds for the faithful performance thereof. It is further provided that said forms shall be either approved or rejected by the said aqueduct commissioners, and shall be approved as to form by the counsel to the corporation ; and in case of rejection of the same, said commissioner of public works shall prepare and submit other forms, &c. It is farther provided that the aqueduct commissioners shall determine what provisions shall be embodied in said contracts in order, so far as may be possible, to save the city from loss, embarrassment and litigation by reason of any work done or supplies furnished thereunder.

By section 30 it is provided that the contracts when awarded -shall be executed in triplicate by the contractor or contractors on the one part and the aqueduct commissioners, acting for the city of Few York, on the other part. Two of said originals are to be filed, one in the finance department, the other with the aqueduct commissioners, and a copy thereof shall be furnished to the department of public works.

By section 31 the salaries and compensation of the persons employed as provided for in this act .. . . shall be paid by the comptroller of the city of New York, on the certification of the said aqueduct commissioners, or of such person or persons as may be designated by them. It is also provided that the various sums of money growing due from time to time, under the terms of the several contracts made for the doing of the work and furnishing the material required by this act, shall be paid by the comptroller, &c., on the certificate of the said aqueduct commissioners or such person or persons as may be designated by them.

By section 32, the comptroller is directed to raise from time to time on bonds of said city such sums of money as shall be sufficient to pay for any real estate and all damage, &c., . . . and also in paying for the construction of said aqueduct.

By section 34, the mayor and comptroller are authorized to sign said bonds, and it is made the duty of the common council to countersign the same and affix thereto the seal of the said city.

By section 39 the commissioners shall in every calendar month file in the office of the comptroller of the city of New York, an account of all expenditures made by them or under their authority, and of all liabilities incurred by them during the preceding month, and an abstract of each such account shall be published in the City Record.

By section 40, no person shall be appointed by the said aqueduct commissioners as inspector or superintendent who shall not be certified by at least three members of the commission to be competent, &c., and by section 41 the commissioners are authorized to provide suitable offices, &c., .... and to employ a secretary and all necessary clerks, messengers and employees, subject to the approval of the board of estimate and apportionment of the city of New York.

It is apparent from the provisions of the act that the work confided to the aqueduct commissioners is a city work, and one in which the corporation has a direct corporate and pecuniary interest. It is also conceded that the corporation has accepted the appointment made by the act of 1883, and is proceeding to avail itself of the provisions in said act contained. This seems to me to bring the case within Appleton v. Water Commissioners of N. Y. (2 Hill, 432, 433), cited and approved by Church, Ch. J., in his opinion in the N. Y. & Brooklyn Saw Mill, &c. Co. v. City of Brooklyn (71 N. Y. 580, 584). The case seems to be distinguishable from that of Maxmil-ian v. Mayor (62 N. Y. 160), on the ground stated by Folger, J., in his opinion at page 170. It is hardly necessary to cite an authority to show that the work in question is a city work or purpose, but if it be necessary, the opinion of Earl, J., in People ex rel. Murphy v. Kelly (76 N. Y. 475, 487), is conclusive. The learned judge says: “It is impossible to define in a general way with entire accuracy what a city purpose is within the meaning of the constitution. ... It would not be a city purpose for the city of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally, between that, city and Albany, although incidental benefits might flow to the city-. Such works have never been regarded as within the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of water outside of the city and convey it into the city, and for such a purpose a city debt could be created. So lands for a park for the health and comfort of the inhabitants of a city could be purchased outside of the city limits, and yet conveniently near thereto.” See also the opinion of Judge Earl in Walsh y. Trustees of N. Y. & Brooklyn Bridge, 96 N. Y. 427, 437, in which it is held that the trustees of the bridge are the agents of the two cities ; and see Ehrgott v. Mayor, &c. of N. Y., 96 N. Y. 264, 275.

On the whole case, I am of the opinion that the officers created and appointed by the act of 1883 are local officers ; that the functions they are to perform are for the peculiar corporate and pecuniary benefit of the corporation of the city; that under adjudicated cases the corporation of the city of New York is liable for their acts ; that they are the agents of the city, and that the act expressly recognizes the city’s liability upon their contracts. Such being the case, I do not see how it can be claimed that the appointees and employees of the aqueduct commissioners should be examined by the State civil service commissioners as State officers, and not by the civil service boards of the city of New York, as local city officers. If, as has been before shown, they are the agents of the city, they are not the agents of the State. The legislature have simply exercised in their appointment a power which, in the Metropolitan Police Case, it was held they possessed, to appoint new local city officers, but the exercise of such power of appointment did not change the local character of the office or the officer.'

The case of Whitmore v. Mayor, &c. of N. Y. (67 N. Y 21), is not in point. That case simply holds that clerks of the district courts of the city of New York are not city but judicial officers, embraced within the judicial system of the State. The decision in that case only followed the case of Quinn v. Mayor, &c. of N. Y. (44 How. Pr. 266, aff’d in 53 N. Y. 627).

It is contended by the corporation counsel that this proceeding is erroneously brought against nominal respondents called the Civil Service Supervisory and Examining Boards of the City of New York ; that there is no corporation bearing that name; that the civil service boards have no corporate existence, and that the proper respondents to be brought into court are the individuals who compose the boards.

I think the counsel is right iu this position; but as I understand him to assent that there should be an amendment, by which the respondents can be properly designated, I shall direct such amendment to be made.

Much stress is laid by the learned counsel in his brief upon the inconvenience which will result from a determination that the employees of the aqueduct commissioners are subject to examination by the civil service boards of the city of New York. Such an argument cannot, of course, be taken into consideration, if the court regards it as plain that the appointees and employees of the commissioners are not exempt from such examination.

I can discover nothing in the act which entirely exempts such appointees and employees from a civil service examination, and it appears that they have neither been examined by the State board nor by the city boards. The provisions of section 40 in regard to a certificate by at least three members of the commission as to competence and fitness, are confined to appointments as inspectors or superintendents. It is very doubtful whether, in the case of those appointees, the legislature intended that the certificate of the members of the commission should be in lieu of a civil service examination by the State board or by the city boards. It is not necessary for me to express an opinion upon that point, but the fact that a positive provision is made in regard to the certificate of qualification, to be obtained by certain appointees, is strong evidence that the legislature intended that all other appointees should be subject to the general laws of the State, in reference to examinations as to qualifications.

Let a mandamus issue in accordance with these views.  