
    Adsit and others vs. Brady.
    When an individual sustains an injury by the misfeasance or nonfeasance of a public officer who acts or omits to act contrary to his duty, the law gives redress to the injured party by action adapted to the nature of his case. Per Bronson, J.
    It is the duty of a superintendent of repairs on the canal, when he finds a break in it or a sunken boat obstructing the navigation, to stop the breach or remove the ob. struction without waiting for orders from the commissioners; and by omitting to do so he will render himself liable to persons sustaining damage thereby.
    Otherwise, if the omission to repair resulted from obedience to orders given by the commissioners. Per Bronson, J.
    The fact of such orders having been given, however, will not be presumed, but must he shown affirmatively. Per Bronson, J.
    
      Where a declaration against a superintendent stated, in substance, that a boat which had been sunk in the canal rendered the navigation unsafe and dangerous, and, that though the defendant had notice 5z.c., he negligently suffered the boat to remain, whereby the plaintiff’s boat in passsing along the canal was .injured; held, sufficient to show the defendant liable, notwithstanding the want of an averment that he had public money in his hands for the purpose of making repairs.
    
      Held, further, that the declaration need not aver the neglect of the defendant to have been wilful and malicious. 1
    Whether, hi a civil action against commissioners of highways for non-repair of bridges &c., the declaration must aver that the defendants had funds, \uere.
    
    The cases of Bartlett v. Crazier, (17 John. Rep. 439,) The People v. The Com. missioners <fc. of Hudson, (7 Wend. 474,) and The People v. Adsit, (2 Hill, 619,) commented on.
    Action on the case against the defendant for neglecting bis duty as superintendent of repairs on the Erie canal, in consequence of which the plaintiffs sustained an injury. The first count alleged that the defendant, on the 29th of April, 1842, was, and ever since has been, a superintendent of repairs of the Erie canal, having section number one of the canal committed to his charge; and as such superintendent of repairs it was his duty to keep said section of the canal in good repair, and to remove therefrom all obstructions to the convenient and safe navigation thereof, so that boats and vessels usually navigating the canal might safely and conveniently, and without damage, pass upon and navigate the section. That the plaintiffs were the owners of the canal boat named Angelica, used in navigating the canal for the transportation of goods &c. That a certain other canal boat was, on the said 29th of April, sunk in the waters of the canal in the section thereof under the defendant’s charge, to wit, at Watervliet, in such a position and in such a manner as to obstruct the • navigation of the canal, and render the navigation unsafe and dangerous, of all which the defendant had notice ; and thereupon it became and was the duty of the defendant, as such superintendent, to remove the sunken boat. Yet the defendant, not regarding his duty &c., did not remove the sunken boat, but negligently and carelessly, and contrary to his duty in that behalf, suffered the boat to remain and continue sunk in the canal from the said 29th of April until the 15th of May in the year aforesaid, obstructing and rendering dangerous the navigation &c. By reason whereof the plaintiffs’ boat Angelica, on the 6th of May in the year aforesaid, the boat being then laden with goods, wares &c., of great value, in navigating and passing along the canal at the place aforesaid, ran against and upon 'the sunken boat and was thereby greatly damaged, as were also the goods with which the plaintiffs’ boat was laden, and the plaintiffs’ boat and goods were sunk in the waters of the canal. By reason whereof &c. The second count was substantially like the first.
    The defendant demurred to the declaration, assigning the following causes : 1. It is not alleged that the defendant was directed by the canal commissioners, or either of them, to make repairs on his section, or to remove the sunken boat; 2. It is not alleged that the defendant had any moneys in his hands for the purpose of making repairs or removing obstructions; 3. It is not alleged that the plaintiffs’ loss was occasioned by the malicious or wilful neglect of the defendant; 4. The defendant, being an agent of the state, is not personally liable to the plaintiffs ; and 5. The defendant being a sub-officer and bound to act under the direction of the canal commissioners, or one of them, he is not liable to the plaintiffs in this action. The plaintiffs joined in demurrer.
    
      S. Stevens, for the defendant.
    
      S. H. Hammond, for the plaintiffs.
   By the Court,

Bronson, J.

When an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. This principle is so well settled that it is only necessary to enquire whether there be any thing in this case to take it out of the operation of the general rule.

Superintendents of repairs on the canals are appointed by the canal board, (1 R. S. 229, §69,) and give bond for the faithful execution of their trust, (Id. p. 236, § 99.) The statute further provides, that “ it shall be the duty of each superintendent, under the direction of the canal commissioners, to keep in repair such sections of the canals and works connected therewith, as shall be committed to his charge; to make all necessary contracts for that purpose, and faithfully to expend all such moneys as shall be placed in his hands by the canal commissioners, or the commissioners of the canal fund.” (Id. § 100.) The next section repeats, that the superintendent “shall be under the direction of the canal commissioners, and especially of the acting commissioner having charge of the line of the canal on which such superintendent is employed.” This means no more than that the superintendent shall be under the general direction of the commissioners, and shall follow their instructions, if any are given, as to the extent and manner of making repairs and the mode of discharging his other duties. It does not mean that the superintendent, when he finds a break in the canal or a sunken boat obstructing the navigation, shall wait a month for the next visit of the commissioner, or send a messenger for orders, before he stops the breach or removes the obstruction.. The thing is preposterous. (Shepherd v. Lincoln, 17 Wend. 250.) The declaration states that the sunken boat obstructed and rendered the navigation of the canal unsafe and dangerous, and that the defendant knew it, That it was his duty to remove the obstruction cannot be doubted.

It was said at the bar that an action will not lie against a deputy of the sheriff for nonfeasance. But the defendant, although subject to the direction, is not a deputy of the commissioners ; and before he can justify this apparent neglect of duty, he must show that the omission resulted from obedience to orders. It will not be presumed that the commissioners, or any other public officer, gave an illegal or unjustifiable command. 0

The want of an averment that the defendant had public money in his hands for the purpose of making repairs, was much relied on, and we ate referred to cases to prove such ah averment necessary. In Bartlett v. Crozier, (17 John. 439,) the action was against an overseer of highways for not repair-' ihg a bridge, in consequence of which the plaintiff had sustained ah injury. It was said by one member of the court, that hieans to make the repair should have been averred j but the case turned mainly on the ground that the action, if it could be maintained against any one, should have been brought against the commissioners, instead of the overseer of highways. In The People v. The Commissioners &c. of Hudson, (7 Wend. 474,) we refused to compel the commissioners, by mandamus, to re-build a bridge which would cost $700,- when they could not, by law, have funds to more than $250, and when in .fact they had none at all. In The People v. Adsit, (2 Hill, 619,) we held that the commissioners Of highways were not answerable criminally for the non-repair of bridges without an averment in the indictment that they had funds. It has not yet been' decided that an individual pursuing a civil remedy must make such an averment; and as an original question I should think it enough to show that the law imposed the duty of repairing, and then leave it to the officer to excuse himself, if he can, by showing the want of funds. But we need not settle that question. For the purpose of enabling superintendents of repairs to discharge their duties, they have been authorized by law to make contracts binding the state; (1 R. S. 236, § 99;) and if the defendant had no public money, he might have contracted for the removal of this obstruction. And besides, he either had, or might have had, funds in his hands. It is expressly provided, that the commissioners of the canal fund shall advance money in sums not exceeding $5000 to each superintendent, for which an account is to be rendered as often as once in sixty days. (Id. 194, § 6 ; Id. 236, § 100 to 103. And see Stat. 1837, p. 518, % 7, 8.) The defendant either had funds of he was in fault for not having them and where that appears, it clearly cannot be necessary for the plaintiff to make any averment on the subject. If some of these provisions had not been overlooked by the counsel, this pbjectipn would, I presume, have been abandoned.

It is said that the defendant had a discretion as to what repairs were needed, and consequently that his neglect should have been charged to be wilful and malicious. (Tompkins v. Sands, 8 Wend. 462.) But clearly the defendant had no discretion to leave this dangerous obstruction in the canal. On the facts stated in the declaration,it was his duty to remove the nuisance without any unnecessary delay.

Judgment for the plaintiffs. 
      
      
         See M’Fadden v. Kingsbury, (11 Wend. 667.)
     