
    Lloyd v. City of New York.
    
      Responsibility of municipal corporation for negligence.
    
    A municipal corporation is liable for injuries to third persons, resulting from the negligence of those employed by its officers in the repairs of the public sewers.
    Appeal from tbe general term of the Court of Common Pleas of the city of New York, where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.
    • This was an action against the. corporation of New York, for the negligence of its servants, in permitting an excavation made in Broome street, in that city, to remain unguarded in the night-time, in consequence whereof, the plaintiff’s horse, on the night of the 6th October 1849, was driven into it, and so badly injured that he died.
    On the trial, it was shown that the hole was dug, on the day prior to the accident, by direction of an officer of the corporation, having charge of the cleaning of the public sewers, in order to cleanse the sewer in Broome street; that it remained open that night; that no light was placed near it, to give notice of its presence; and that whilst the plaintiff was driving his horse before a cart, at a walk, along Broome street, the horse fell into the excavation, and received injuries which resulted in his death.
    *The defendant’s counsel moved for a nonsuit, on the ground that the corporation, in the exercise of the political powers conferred in reference to the construction and cleansing of sewers, was not liable for the negligence of the person employed to do the work; this motion was denied, and an exception taken, and the court charged the jury, that if the injury to the plaintiff resulted from the negligence of the person who dug the hole in question, the corporation was liable. There was a verdict for the plaintiff, and on a motion for a new trial, INGRAHAM, J., delivered the following opinion:
    “ The question which has been argued in this case is, whether the corporation of the city of New York is liable for the negligence of their agents, or persons employed by them, in cleansing sewers, in the streets of this city, by which an individual is injured in his person or property. This principle has been so often recognised in this court as the law, and in many cases, without objection on the part of the defendants, as scarcely to leave it an open question with us.
    
      “ In the case of contractors, under the defendants, in opening streets, digging wells, and other works of similar character, such liability has been held to exist. In the case of Furze, the question of liability was distinctly raised and argued on behalf of the defendants, and ruled against them. This case has been affirmed on appeal; hut a distinction is taken between that case and the present, upon the ground that there the defendants neglected to perform a duty required of them by law; and in the present case, they did all that was necessary *on their part, and the negligence complained of is in the agent employed by them, who alone is liable. The cases referred to by the defendants’ counsel to a certain extent, sustain this principle; but I do not understand them as adopting it in the broad extent contended for. The cases cited in our own courts, begin with the case of Bailey v. The Mayor, &c. (3 Hill 538), which only decided that the corporation was liable for the acts of the commissioners, relative to bringing water to the city, although they were not appointed by the city authorities, upon the ground that the franchise was heno-ficial in a pecuniary point of view. This case is referred to in the case of Furze (3 Plill 618), simply with the remark, that though corporations are not liable for the acts of agents they are obliged to employ, yet the rule does not apply to a duty enjoined on the corporation, neglected by the agent. Some of the cases in the English courts, cited by the counsel, do, to some extent, sanction the doctrine maintained by the defendants; but, in such cases, it seems to me, that even where they can be relieved from such liability, it is incumbent on them, to show that they committed the performance of the duty enjoined on them to a person who was competent and suitable for the work intrusted to him to perform.
    “ Where gross negligence in discharging the duty is proven, the presumption is strong, that the agent employed was an improper one; and in such case, at any . rate, the liability remains. They were under no obligation to employ any particular individuals in this work. On the contrary, the selection of the agent rested entirely with them; and his conduct here, is such as to justify the conclusion that he was an unfit person to be intrusted with the performance of it. Whether this rule could he enforced now, since the officer to be charged with these duties is elected by the people, is a very different question; but, in the present case, I think, both for the reasons above stated, and on account of previous decisions made *by this court on this question, that we should hold the defendants liable.”
    The motion for a new trial having been, accordingly, denied, and judgment perfected on the verdict, the defendant took this appeal.
    
      Willard, for the appellant.
    
      Stevens, for the respondent.
   *Foot, J.

The corporation, of the city of New York possesses two kinds of powers, one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty — the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former; the corporation is a municipal government, and while in the exercise of the latter, is a corporate, legal individual. The distinction between these two classes of powers is obvious, and has been frequently recognised and established in our courts. (Wilson v. Mayor, &c., of New York, 1 Denio 595; Bailey v. The same, 3 Hill 531; s. c., opinion of Hand, Senator, 2 Denio 450; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463.)

Although the difference between the two kinds of powers is plain and marked, yet, as they approximate each other, it is oftentimes difficult to ascertain the exact line of distinction. When that line is ascertained, it is not difficult to determine the rights of parties, for the rules of law are clear and explicit, which establish the rights, immunities and liabilities of *the appellants when in the exercise of each class of powers. All that can be done, probably, with safety, is, to determine, as each case arises, under which class it falls.

The act which caused the injury, in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or in other words, the establishing of rules and regulations in respect to cleaning the sewers, or keeping them in a state of cleanliness, is one thing, and the act of cleaning them is another. The power and duty to perform the latter is clearly ministerial, and falls under the class of private powers; th6 principle of respondeat superior, consequently, applies, and the judgment must be affirmed.

The counsel for the appellants in this case pressed with earnestness and ability upon the attention of the court, various considerations of policy and convenience, in favor of exempting the corporation from liability in all cases, in which it must necessarily employ agents to discharge the duties enjoined upon it by law. As a corporation can only act by agents, such a rule of action would exempt it from legal liability in every case, whatever might be the circumstances; the natural and certain consequence of which would be, innumerable applications to the common council for redress, .legislatively, and which would bring in their train an organized body of soliciting parties and agents, the allowance sometimes of extravagant and unjust claims, the rejection, at other times, of meritorious ones, in a word, all the evils attending a legislative body having control over large funds and exposed to the solicitations and devices of a corps of artful and unscrupulous claimants, and their hired or interested agents. Where the city now pays, in accordance with just legal principles, hundreds of dollars, it would probably then pay thousands, besides having in the halls of its local legislature scenes of a most forbidding character.

Judgment affirmed. 
      
       If a sewer is properly constructed, and sufficient for ordinary purposes, the corporation is not liable for an overflow, occasioned by a heavy rain. Smith v. New York, 66 N. Y. 295; s. c. 4 Hun 637; Carr v. Northern Liberties, 35 Penn. St. 324. And see Lynch v. New York, 76 N. Y. 60; Grant v. Erie, 69 Penn. St. 420.
     