
    Elizabeth G. Hughes, App’lt, v. The County of Monroe, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1895.)
    
    1. Counties—Liabilities.
    The principle that, where the power is intrusted to a municipal corportion as one of the political divisions of the state and is conferred not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for non-user, nor for the mis-user by the public agents, is applicable-to counties.
    2. Same.
    Counties which have special charters, are not liable for the acts of their officers, when engaged in the discharge of public duties, and to that extent exercising acts of sovereignty.
    3. Same.
    The liability of a county which, with the consent of the legislature, has undertaken to care for its insane through the instrumentality of a county asylum, for an injury to an employe at such asylum is determined by its status at the time of the accident.
    ' 4. Same—Revenue from private sources.
    Where the expense of maintaining the insane at such asylum is, when-possible, collected from the estates of such insane or from those legally liable for their support, and the asylum receives a small sum annually from the sale of surplus farm products, such revenue is merely incidental and is in no sense a source of profit, which can be deemed to render the operation of the asylum a private business.
    Appeal from order of the general term of the supreme court in. the fifth judicial department, which sustained defendant’s exceptions ordered to be heard in the first instance at the general term,, set aside a verdict in favor of plaintiff and granted a new trial.
    The action was brought to recover damages for a personal injury sustained by the plaintiff, alleged to have been caused by the defendant’s negligence.
    
      Eugene Van Voorhis, for app’lt; F. E. Drake, for resp’t.
    
      
       Affirming 61 St. Rep. 392.
    
   Bartlett, J.

The plaintiff appeals from an order, made on a motion heard at the general term in the first instance, granting a new trial after verdict at the Monroe circuit in her favor.

The plaintiff, an employee at the Monroe Insane Asylum, was-severely injured while operating a machine known as a steam mangle, which was used in the laundry.

At the trial it was insisted on behalf of the defendant that the county of Monroe was not liable in any event; that, assuming its liability, the plaintiff had failed to make out a cause of action.9

As we are of the opinion that the county of Monroe is not liable under the facts as disclosed in this record, it is unnecessary to determine whether the plaintiff was entitled to go to the jury.

The plaintiff was injured February 11,1891. Before this action was commenced the County Law of 1892 was in force, but it is unnecessary to examine its provisions, as the status of the county of Monroe on the 11th day of February, 1891, must determiné its .liability.

Prior to the year 1863 the county of Monroe cared in part for its insane in a department of the county poorhouse. By chapter 82, Laws of 1863, it was enacted that the insane asylum of the county of Monroe should be a separate and distinct institution from that of the Monroe county poorhouse, and the board of supervisors were placed in control and authorized to elect a warden, who was to hold office for three years and a board of three trustees for a like term.

The warden was constituted the chief officer of the asylum subject to the regulations established by the board of supervisors; all purchases for the asylum were to be made by the warden under direction of the trustees; all contracts with the attendants and assistants were to be made in the official names of the trustees; the warden was also required to make out and deliver to the trustees annually an inventory of all property belonging to the asylum ; the warden was also authorized to make contracts for the support of insane persons of the county, and by the direction of the board of supervisors or the trustees to -demand from the state lunatic asylum all persons who were chargeable to the county of Monroe or to any town or city in the county.

it- was further provided that no insane person residing in the county of Monroe and likely to become a county charge should thereafter be admitted to the state lunatic asylum without the written consent of the trastees of the Monroe county asylum or the chairman of the board of supervisors.

By chapter 633, Laws of 1870, it was made the duty of the trustees to determine all questions in relation to the indigent insane as to whether their maintenance was properly a charge upon a specified town within the county of Monroe, or upon the city of Rochester, or upon the county of Monroe; the trustees were also empowered when any lunatic, not indigent, was placed in the asylum, to charge his estate, or the person legally responsible, for his maintenance and to collect the same.

It will thus be observed that the county of Monroe, being legally chargeable as one of the political divisions of the state w'ith the care or its insane, saw fit in 1863, with the consent of the legislature, to undertake the discharge of that duty through the instrumentality of a county asylum.

In other words, the county of Monroe from that time shared with the state the burden of caring for the insane withdrew, from the state lunatic asylum all indigent insane, for whose maintenance it was liable and secured legislation requiring all the pauper insane of the county to enter its own asylum.

When an insane person is deprived of his liberty and the custody of his property, placed in close confinement, and separated from family and friends, it is an extreme exercise of the police power by the state, or some political division thereof, for the protection of society and to promote the best interests of the unfortunate victim of mental alienation.

It, therefore, follows that the county of Monroe, while acting under the statutes referred to, was engaged in the discharge of a most important public duty and consequently, not liable to the plaintiff in damages by reason of her injuries. Dillon on Municipal Corporation (4th edition), § 693 ; Addison on Torts (Bank’s ed.), p. 1298, § 1526.

In Maxmilian v. Mayor of New York, 62 N. Y. 160, this court laid down the rules of law that control this case. The plaintiff sought to recover damages for the death of her intestate who was killed by an ambulance wagon whidh was driven by an employee of the commissioners of charities and corrections.

It was held that when the city of New York, by the legislative enactment, was required to elect or appoint an officer to perform a public duty laid not upon it, but upon the officer, in which it had no private interest, and from which it derived no special advantage, such officer is not a servant or agent of the municipality for whose acts it is liable even though the officer had in charge and was negligently using corporate property.

Judge Folger said (page 164): “There are two kinds of duties which are imposed upon municipal corporations; one is of that kind which arises from the grant of a special power in the exercise of which the municipality is a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, under the exercise of which it is as a sovereign. The former power is private and is used for private purposes; the latter is public and is used for public purposes. Lloyd v. Mayor, 5 N. Y. 374. * * * But when the power is intrusted to it as one of the political divisions of the state and is conferred not for the immediate benefit of the municipality, but a- means to the exercise of the sovereign power for the benefit of all citizens, -the corporation is not liable for non-user, nor for misuser by the public agents. Eastman v. Meredith, 36 N. H. 284.”

In the case at bar, it is true, we are not dealing with a municipal corporation, for in February, 1891, the county of Monroe was a political division of the state, at most only a quasi corporation; but, nevertheless, the reasoning in che opinion just cited is applicable.

By the act of 1863 the county of Monroe, through its board of supervisors, was required by the legislature to elect a warden and trustees of its insane asylum to perform an important public duty in which it had no private interest, and from which it derived no special advantage. The warden and trustees, when so elected, were in no legal sense the agents of the county of Monroe, but were public officers engaged, in the discharge of duties which involved the exercise of the police power, and in which the general public were interested.

While the county of Monroe by its board of supervisors, was-empowered to enact general rules and regulations for the government of the asylum, and to elect its warden and trustees, it had no power to interfere directly with the management of the institution unless the warden so elected was guilty of misconduct, when he could be removed by the board of supervisors.

The non-liability of counties and also of municipal and other corporations having special charters for the acts of their officers when engaged in the discharge of public duties, and to that extent exercising acts of sovereignty, is established by many cases. Ensign v. Supervisors of Livingston County, 25 Hun, 20; Alamango v. Supervisors of Albany County, 25 id. 551; Ham v. The Mayor, 70 N. Y. 459; Smith v. City of Rochester, 76 id. 506; Benton v. Trustees of Boston City Hospital, 140 Mass. 13; Curran v. The City of Boston, 151 id. 505.

The learned counsel for the plaintiff, evidently appreciating the force of the general rule to which we have adverted, sought to show that the case at bar was, by reason of special facts, not within its operation.

It is insisted that the defendant, at the time of this accident, was not only caring for the pauper insane of Monroe county, but also for other patients through contracts made for that purpose.

There is no evidence that the county of Monroe was caring for insane patients not residing in the county, for a consideration, but if such were the case it would be without warrant of law, as we think a fair construction of section seven of chapter 82 of Laws of 1863, limits the contracts to be made “to any individual of said county” who wishes to contract as to the care of the insane of Monroe county.

There can be no doubt that the committee of a lunatic, or any one legally liable to support him, should, in the first instance, be required to pay for his maintenance, and the income derived in this manner is in no sense a source of profit to the county so that it would be deemed in law as conducting a private business.

We may also consider in this contention the suggestion that as the asylum received a small sum annually from the sale of surplus farm products it was to be treated as engaged in a private enterprise resulting in profits.

The revenue derived from both of the sources referred to is merely incidental and tends to some little extent to lessen the public burden assumed by the county of Monroe. Curran v. City of Boston, 151 Mass. 505, 510; Alamango v. Board of Supervisors of Albany County, 25 Hun, 151, 152, 153; People ex rel. Society of the New York Hospital v. Purdy, 126 N. Y. 679, and 58 Hun, 386; 34 St. Rep. 893.

We have considered the other suggestions of counsel for appellant contained in his brief and consulted the authorities to which he refers, but find nothing to take this case from the operation of the general rule.

The order of the general term should be affirmed and under the stipulation of plaintiff judgment absolute ordered for the defendant dismissing the complaint on the merits, with costs to defendant in all the courts.

All concur, except Haight, J., not sitting.

Ordered accordingly.  