
    Hutson & Wife v. The Mayor, Aldermen, & Commonalty of the City of New York. Carlin & Hariman v. The same.
    It may be conceded, as the result of the several eases on the subject, that, as a general rule, a private suit cannot be sustained, in this state, against commissioners of highways, for neglect in not repairing the highways and bridges in their respective towns, unless it be shown that they had the requisite funds for that purpose in their hands, or under their control
    But this rule does not apply to the corporation of the city of New York, in their capacity of commissioners of highways. They having within their control the funds for repairing the highways, or being in fault for not having them, their duty to repair is absolute and, consequently, they are answerable, in damages, to any person sustaining an injury by reason of their neglect of duty. * Sandford & Campbell, J. X, dissented. -
    An avenue in the city of New York, laid out as such by commissioners appointed for that purpose, and over which the mayor and common council have exercised their power, by regulating it, and causing the curb and gutter to be set, defraying the expenses by assessment, is under their jurisdiction and control, as a municipal corporation.
    After such corporation have actually opened a street, or avenue, for the public accommodation, and, by their acts, have invited the public to travel over it, the duty to keep it in repair becomes absolute 5 the fee of the streets being vested in them, and they alone having the power, as well as the means, to repair. Sandford & Campbell, X X, dissented.
    But it does not follow from this doctrine, that the corporation is liable for every obstruction or nuisance, created by third persons, in the public streets, in violation of the city ordinances. (Per Mason, J.)
    Where an individual, or a corporation, have a fixed and certain duty assigned to them, of a merely ministerial character, and the means placed at their disposal sufficient for its performance, they are under obligations to perform it, at the risk of being made to answer for the consequences ofitheir neglect.
    Whenever an indictment lies for non-repair, an action on the case will lie at the suit of an individual sustaining any peculiar damages, arising either from nonfeasance or mal-feas'ance
    Thus, where a municipal corporation is under a legal obligation ±0 repair streets,- and an indictment will lie against it for not repairing, and in consequence of their suffering a street to be out of repair, individuals sustain damages by injuries to person or property, an action will lie against the corporation.
    Sandfokd & Campbell, J. J., dissented.
    (Before Oaklet, Ch. J., Mason & Paine, J. J.; and before Sandfokd, Mason, & Campbell, J. J. Hubs, J., upon consultation, concurred with the majority.)
    May 8, 9th; Oct. 6, 7;
    Dec. 27th, 1851.
    The first of the above cases was argued before Justices Oakley, Mason, and Paine, at the October term, in 1851. The second case was argued before Justices Sandfokd, Mason, and Campbell, at the May term, 1851. Judgment was rendered at December term, 1851, affirming the judgment below in both cases, in accordance with the opinion of a majority of the five justices above named. The principles involved were the same in both cases. The case of Hutson and wife v. The Mayor, £fc., of New York, was brought to recover damages for injuries sustained by the plaintiff’s wife, in consequence of being precipitated into an excavation in the centre of the Fourth Avenue, in said city, while passing along the same in a carriage, at night. The complaint alleged that the injuries were received by, and through the gross negligence, carelessness, and default of the defendants, and of their servants or agents, and for want of due care and attention to their duty, in not having or keeping the usual, and ordinary travelling portion of the said avenue in repair, and in a safe condition. That at the time the occurrence happened, there was no light, barrier, or signal, whatever, to give notice or warning of any danger, or of the unsafe condition of the said street or avenue, although it was the duty of the defendants to give such warning. That there was not, in that particular place in the street or- avenue, sufficient width from the curb stone, to allow the said carriage and horses to pass in safety, although it was the duty of the defendants to preserve sufficient width for that purpose. And the complaint alleged that there was no fault on the part of the plaintiffs, or the driver of the carriage.
    The defendants, by their answer, denied most of the facts stated in the complaint, but they admitted that a portion of said Fourth Avenue had, before the time mentioned in said complaint, been excavated, in pursuance of the authority vested by a law of this state in the Harlem Railroad Company, an incorporated company, and that neither the defendants, nor any person or persons in their employment, made such excavation, Oi any part thereof. And they averred that the whole of said portion of said avenue was employed by the said railroad company, as aforesaid, and was, at the time mentioned in said complaint, in good and sufficient order and repair, and safe for the driving of any vehicles, with ordinary care and skill, along the same ; and that the defendants were not bound to do anything at the place aforesaid, with respect to the said embankment, to keep the same from becoming dangerous, but that if any such duty devolved upon any person or persons, or corporation, it was the duty of the said Harlem Railroad Company, and not of the defendants.
    The plaintiffs, in their reply, averred that at the time mentioned in the complaint, the said street or avenue was in a dangerous or unsafe condition, and denied that there was any gross negligence or carelessness, or any negligence of the person driving the carriage. And they averred that the said excavation mentioned in the complaint, was made by persons in the employment, or under the control of the defendants; and they denied that the whole of the portion of the said Fourth Avenue which had been excavated as averred in the answer, was employed by the Harlem railroad company, but on the contrary, a portion of said avenue through and along which said excavation had been made, was used and occupied as a public highway, for public travel, by reason whereof the defendants were bound to keep the same in good repair. And the plaintiffs; denied that said highway or avenue was, at the time mentioned in said complaint, in good or sufficient order or repair, or safe-for the driving of any vehicle with ordinary care or skill in or along the same. And they also denied the allegation in said answer, that the defendants were not bound to do anything in respect to the said embankment, to keep the same from becoming dangerous, and alleged that the duty of keeping the same from becoming dangerous did devolve on the defendants, in common with, or independent of, said Harlem railroad company.
    On the trial the plaintiffs called
    
      Matthew Kelly, who testified,- that, on the morning of December 11,1849, between three and four o’clock, he was driving a carriage, in which the plaintiff and his wife then were, on the Fourth Avenue, between 86th and 37th streets. That it was very dark, and he was driving close to the curb stone, when one of the horses went down, and while witness was getting down from the carriage, it went over into an excavation in the avenue. That the street was between three and four feet wide at this point, but wider at other points. That the earth had been here washed away by the rains, lower than at other parts of the avenue. Being cross-examined, the witness testified, that the excavation into which the carriage fell, was that in which the Harlem railroad is laid, and had been there ever since that railroad was first constructed. That the edge of the gulley was three or four feet from the curb stone. Jesse H. Patterson, being called by plaintiffs, testified that he was inspector of hacks, and was acquainted with the portion of Fourth Avenue in question. That on the morning following the accident he went to the spot. That there was a little gulley, in which the carriage appeared to have slipped. In other places, there was distance enough between the curb stone and the excavation for a carriage to pass. That the gulley had been washed by the rain since the excavation was made. Being cross-examined, the witness testified, that the gulley was about two feet wide at the top, and from eighteen inches to a foot deep where the carriage went in, which was just at the edge of the precipice. That the roadway alongside the excavation, between 36th and 37th streets, varies from six to twelve feet in width. That the accident occurred at the narrowest place. The wheel slipped about a foot before going over the precipice. That the side of the excavation down which the carriage fell, stood at an angle of about forty-five degrees. That the curb and gutter was set by this place, bid the street was not paved. It,was travelled, but there was a sidewalk for foot passengers. William Jones, called by plaintiff, testified, that he was a practising physician, and attended and examined Mrs. Hutson immediately after the accident; that she was severely injured, some of the injuries being of an internal character. The plaintiffs further proved that the plaintiff, Lucinda Hutson, was, in consequence of the injuries received by this accident, confined to her bed for a considerable space of time. The plaintiffs rested their case'. Whereupon it was admitted by the counsel for the plaintiffs, that the excavation into which the carriage fell, was made by the Harlem railroad company, under the authority of the statute authorizing them to build their road through certain streets in the city of New York, the consent of the corporation of the city of New York, required by said statute, having been first given. The counsel for the defendants then moved for a non-suit, upon the ground that the defendants, being a municipal corporation-, were not liable for injuries resulting in consequence of the public highways subject to their control, being out of repair. The court denied the motion; and the counsel for the defendants excepted. The court thereupon charged the jury, that the defendants were bound to keep and maintain the highway at the place in good and sufficient repair, so that carriages could safely pass along, and if the jury were satisfied from the evidence that the defendants had failed to do so, and that the injury resulted from that cause, and without any negligence or want of care on the part of the driver of the carriage, the defendants are liable. To which charge of the court, and every part thereof, the counsel for the defendants duly excepted. The jury found a verdict for the plaintiffs, for $3000.
    The second of the above suits was brought by Carlin & Hariman, the owners of the carriage, horses, and harness, to recover the damages sustained by them by the destruction of the carriage and harness, and the killing of the horses, on the same occasion, and by the same means as mentioned in the first suit. The pleadings were similar to those in the other case. The reply, however, alleged that the said damage and injury did not take place upon that part of the said Fourth Avenue which the New York and Harlem railroad company was authorized to occupy and enjoy ; but upon that part of said avenue which was exclusively under the care and control of the defendants, and which was vested in the defendants, as one of the public streets and avenues of the city of JVew York, and was under their exclusive care, control, and jurisdiction. And the plaintiffs insisted that it was the duty of the defendants to keep the-said avenue, or so much thereof as was laid out and opened for a public avenue or street, in good repair, and from being dangerous, to persons using the same ; and they insisted that the defendants were liable for the loss and injury which they, the plaintiffs, had sustained in the premises; and that they were not bound to look to the Harlem railroad company, or any other person whomsoever, for the same.
    The proof was similar to that in the other case, and showed the killing of the horses, and the destruction of the carriage and harness, and their value. It was also proved that the avenue was opened and regulated, and the curb and gutters set, where the accident happened, and also two or three blocks further up the avenue : that the Fourth Avenue, at that place, had been a public road two or three years ; and that the excavation into which the carriage fell was about 35 or 40 feet deep, and about the same width.
    The jury rendered a verdict for the plaintiffs, for $645 50 damages.
    The defendants appealed in both cases.
    
      H. E. Davies, for the appellants.
    I. This action, proceeding upon the sole ground that the cor-. poration of New York are liable for injuries, which may have been sustained in consequence of the public streets, or highways, being out of repair, cannot be maintained. (1st.) No action lies at common law, against the person who ought to maintain and repair a common highway, at the suit of him who has been injured in consequence of the neglect or omission to make such repair, unless the obligation to repair rests on tenure, prescription, or contract, the only remedy being by indictment. (Henly v. Mayor, &c., of Lyme Regis, 5 Bing. 91; B. R. 3 Barn. & Adol. 77; 1 Bing. N. C. 222, S. C. in error ; The Mayor, &c., v. Turner, Cowp. 86; Payne v. Partridge, Shower, 255; Russell v. Men of Devon, 2 T. R. 667; Bartlett v. Crozier, 17 J. R. 439; also 15 ib. 250; Furze v. The Mayor, &c., of New York, 3 Hill, 612; Harwood v. City Lowell, 2 Law Reporter, N. S. 640; People v. Commissioners of Highways of Hudson, 7 Wen. 476; Laws 1815, vol. 2, p. 270, 428; Laws N. Y. from 1691 to 1725, (printed 1726,) p. 52, 86; 1 Revised Statutes, 501; Commonwealth v. Springfield, 7 Mass. 9; Mower v. Leicester, 9 Mass. 247.) (2d.) There is no ■ statute in force in this state authorizing such an action.
    II. The judge, at the trial, should have dismissed the complaint, and allowed a nonsuit; and his refusal to do so, is error. A nonsuit should, therefore, be entered.
    III. The charge of the court involves the same error. The verdict ought therefore to be set aside.
    
      E. W. Stoughton, for Hutson, and wife.
    This case presents but a single question ; whether the defendants, who have suffered a public street in the city of New York, to get and remain out of repair, are liable for damages sustained by the plaintiffs, whilst being carefully driven along such street, the bad condition thereof being the sole cause of the injury complained of? The plaintiffs contend that the defendants are liable upon two grounds : First,—Because by accepting their charters they became, by the conditions thereof, bound to keep the public streets, within the city of New York, -in repair, and as a consideration for this, they received, by force and virtue of such charters, grants of valuable property, privileges, and franchises. .(See Charters of 1686,1708,1730, and Amended Charter of 1830.) Having accepted, acted under, claimed, and enjoyed the benefit of these charters, the defendants are bound by their conditions, and if they fail to perform them, are liable for such special damage as any person may sustain by reason thereof. (Mayor of Lynn v. Turner, 1 Cowper’s R. 86; Payne v. Partridge, 1 Shower, 255; Henly v. Mayor, &c., of Lyme Regis, 5 Bingham 91; same case in error, 3 Barn. and Ad. 77; same case in House Lords, 1 Bing. N. C. 222; Mayor, &c., of New York v. Furze, 3 Hill, 612; People v. Corporation of Albany, 11 Wend. 539; Heacock v. Sherman, 14 Wend. 58; Mayor, &c., of New York v. Bailey, 2 Denio 433; Townsend v. Turnpike Co., 6 Johns. R. 90.) Second.—The defendants are liable, because it is their duty, as public officers, to keep and maintain the streets of the city in repair; and for this purpose, they are empowered to raise sufficient funds, and to employ all necessary officers and servants. If, in consequence of a neglect of this duty any person suffers special damage, he is entitled to the usual common law remedies for the recovery thereof. (See the cases above cited, and also Williams’s case, 5 Coke, 72 ; 1 Coke’s Institutes, 56; -v. Hovendon, 1 Croke’s Rep. 664; Delmonico v. Mayor, &c., of N. Y., 1 Sand. S. C. R. 222; Jenner v. Jollife, 9 Johns. R. 381; Adsit v. Brady, 4 Hill, 630; Lansing v. Smith, 4 Wend. 9; Pierce v. Dart, 7 Cowen. 609; Dygert v Schenck, 23 Wend. 446.)
    C. W. Sandford, for Carlin and Hariman.
   By the Court.

Mason, J.

The plaintiffs' right to recover in these cases, is resisted mainly on three grounds. It is contended,

I. That the power and authority of the defendants over roads and highways, and over the avenue in question, at the place where the injury complained of was sustained, is exercised by them only in their character of commissioners of highways ; and that no action will lie at the suit of an individual against commissioners of highways for not repairing.

II. That, admitting the defendants cán and do exercise the power of repairing streets and avenues, as a municipal corporation, and that Fourth Avenue, at the place in question, is a street, in the proper sense of the term ; yet, that no duty or obligation is imposed upon them in regard to repairing the streets; and,

III. That the injury complained of in this cause arose from non-feasance of the defendants; and that no action will lie against them for non-feasance merely—the remedy being by indictment.

The first objection contains two propositions. (1.) That the defendants are to be viewed, in this action, as commissioners of highways. (2.) That as such commissioners, they are not liable in damages, at the suit of a private person for not repairing. We shall consider the last proposition first.

Although there is no express adjudication on the question, yet we think it may be conceded, as the result of the several cases on this subject, that as a general rule, a private suit cannot be sustained, in this state, against the commissioners of highways, for neglect in not repairing the highways and bridges in their respective towns. We think the principles laid down by the courts, lead to this result, with regard to these officers, in the several towns in this state, who are subject to, and act under the provisions of the revised statutes, relative to highways ; (1 R. S. part I. chap. xvi. p. 501, &c.) They are exempted, however, from liability, we apprehend, not from any peculiarity in the nature of their office ; but by reason of the special provisions of the statute.

The first case in which this question appears to have been considered, is that of Bartlett v. Crozier, (17 John. 439,) in the court of errors. The suit was against the overseers of highways, for damages sustained by the plaintiffs in consequence of a bridge being out of repair. Chancellor Kent delivered the unanimous opinion of the court. He examined the provisions of the statute in defining the duties both of overseers and commissioners of highways ; and he came to the conclusion that no action would lie against the overseers, because they act only-under the orders of the commissioners, who alone are the responsible persons in respect to the repair of bridges ; and that if a private action . could be sustained at all, it could only be against the commissioners. The statute gave them the care and superintendence of the highways and bridges ; and made it their duty to cause them to be kept in repair. Yet the duty, he held, did not exist absolutely; but only when ihe commissioners had money in hand arising from penalties and forfeitures, or which had been paid over to them under the direction of the supervisors. And he came to the conclusion, that, inasmuch as the law had not supplied them with the pecuniary means, nor armed them with the coercive power to meet and sustain so heavy a responsibility, an action would not lie against them. These remarks, with regard to' the commissioners, it is true, were in some degree extra-judicial, as the action was against the overseers, and not against the commissioners, but they have been referred to, and adopted by the court, in subsequent cases. Thus, in the case of the People v. The Commissioners of Highways of Hudson, (7 Wend. 474,) the court quoted from the opinion of chancellor Kent, in Bartlett v. Crozier, as containing the true rule on this subject. That was an application for a mandamus, to compel the defendants to build a bridge which would cost over $1,400. The application was denied ; for the reason, that the only sum at the disposal of the commissioners in any one year, was $250, for the repairs of all the highways and bridges in the town. The statute, it was remarked by the court, did not extend their duty beyond their means. The same point was ruled in the People v. Adsit, (2 Hill, 619,) which was an indictment against commissioners of highways, for neglect of duty in not repairing abridge. The indictment contained no averment that the defendants had funds, or other means to defray the expense ; and the court were of the opinion, that the existence of the funds or other specific means, was a condition precedent to the obligation of commissioners of highways to repair bridges. And in the more recent case of Barker v. Loomis, (6 Hill. 463,) it was held, that commissioners of highways were not bound to build or repair roads or bridges, until the necessary funds were provided for that purpose ; and that therefore there was no legal obligation on the town to pay moneys, which the commissioners had borrowed and expended in the repair of roads and bridges.

If the commissioners of highways are not bound to build or repair a road or bridge, and they cannot be compelled to do it, unless they have the requisite funds in their hands or under their control, and any debt they may contract for that purpose, is not binding upon the.town—it would seem to follow-, necessarily, that they cannot in such circumstances be made liable to a private individual for not repairing. Their liability is founded upon their duty. The same process of reasoning, however, which would excuse them from liability, when they have not the means at their disposal, and for that cause, would fasten the liability on them when they have the means. If they cannot be made liable, because they have not the means to repair ;—when they have the means, it would seem that their duty becomes absolute, and that they are liable for the consequences of neglecting to perform it. This principle was applied by the Supreme Court, in the case of Adsit v. Brady, (4 Hill, 638.) The defendant was a superintendent of repairs on the Erie Canal ; and the action was brought against him for damages sustained by the plaintiff, for not keeping the canal in good repair, and removing obstructions to the convenient navigation thereof. The obstruction causing the injury, was a sunken boat, which obstructed the navigation, and rendered it unsafe, and had caused the plaintiff’s boat to sink. The defendant demurred to the declaration ; but the court decided that the superintendent was bound by the statute, to keep the section of the canal committed to his charge in repair, and that under the provisions of that statute, he had, or was in fault for not having, sufficient funds in his hands for that purpose ; that it was therefore his duty to repair, without any unnecessary delay—and they laid down the general rule in these terms : “ 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 and this principle, the court said, was well settled ;—and so well settled did it appear to them, that they did not adduce any authority in support of it.

Let us now apply the doctrine of these cases to the defendants, in their character of commissioners of highways. The general act in relation to the powers and duties of commissioners of highways, is in many of its provisions inapplicable to the city and county of New York, especially that section which limits the amount to be raised in any town for repairs of roads and bridges, to two hundred and fifty dollars. (1 R. S. 562, sec. 4.) But whether it is so or not, it is a fact of which we can take judicial notice, that the supervisors of the city and county of New York, are annually authorized by special acts of the legislature, to levy as much money as they deem necessary for repairs of roads, as well as for all other county purposes. This annual act has become as much a matter of course as the annual supply bill for the expenses of the state government; and, by referring to the laws of New York for 1849, (p. 402, ch. 276,) we find that the supervisors were authorized by an act, passed April 7th, of that year, to raise among other sums, one million four hundred and twenty-five thousand dollars and upwards, towards the contingent expenses of the city and county ; and among the items comprising this sum, we find in the proceedings of the board of aldermen and assistants, under date of March 5th, 1849, an appropriation for roads for the year 1849, to the amount of twenty thousand dollars.

With respect, therefore; to the moneys .requisite to make the necessary repairs to this road, so as to have prevented the injury complained of by these plaintiffs, we feel authorized to apply the language of the court in Adsit v. Brady : The defendants either had the funds, or were in fault for not having them. They must, under the circumstances, be presumed to have had them, and if they had them not, it was for them to have shown that fact in excuse for their neglect.—(Adsit v. Brady, supra.)

If, then, the Fourth Avenue, at the place where this accident happened, is to be considered as a road, and the relation of the defendants to it is to be deemed that of commissioners of highways merely, we should be authorized upon principle to hold, that as the defendants had the means of repairing in their power, their duty to do so was absolute ; and that consequently, they are answerable in damages to any person who may have sustained injury by reason of their neglect or duty.

And this brings us to the second point in the defendants' first proposition, viz. whether the Fourth Avenue, at the place where the accident happened, was a highway or road, or a street or avenue. The distinction between these roads, and streets or avenues, is clearly taken in the statute. The Corporation of the city of New York have been, from very early periods of its history, commissioners of roads and highways, as was fully shown on the argument by the counsel for the defendants ; and they exercise over roads and highways on the island the powers of commissioners of highways. But the case of streets' and avenues is widely difieren t. These have been laid out and designated by commissioners of streets and roads, appointed for that purpose in 1807. When opened in pursuance of the provisions of law, the fee in them is vested in the defendants as a corporation, and the regulation of them is subject to their control as a municipal corporation. Section 175 of the general act relating to the city of New York, (2 R. L. 407,) gives to the defendants the power to regulate, pave, and to alter and amend, the streets of the city, as they think proper ; and to defray the expense thereof, by assessment upon the owners and occupants of the adjoining lots, and upon the lots themselves; "and to enforce the payment thereof by distress and sale of the goods and chattels of such owners or occupants : and by a subsequent statute (Laws, 1816, p. 114,) they have power to sell the houses and lots, which may have been so assessed.

That the Fourth Avenue, at the place in question, was thus subject to the control of the defendants as a corporation, we think, is manifest. It is one of the avenues laid out by the commissioners appointed in 1807. The complaint alleges, and the answer does not deny, that it is one of the public streets of the city ; and it appears by the evidence, that the defendants, as a corporation, had exercised their power over it, by regulating it, and causing the curb and gutter to be set. We do not mean to be understood as saying, that a street or avenue, after it is opened by commissioners, according to the statute, and the fee vested in the corporation, may not be worked as a road by the defendants, as commissioners of highways, and the expenses defrayed out of the appropriation for roads; but the regulating and setting the curb and gutter, is a power exercised under the 175th section, by the defendants, in their municipal character, the expenses of which are defrayed by assessment,' as prescribed in that section. And this proceeding, we think, settles the Character of the defendants’ jurisdiction over it.

II. It is contended, however, that, admitting this to be the case, and that the corporation have the power to repair, yet that the duty to do so is not imposed upon them. The statute merely says, that “ it shall be lawful, &c., for them to regulate ” the streets, &c. ; and therefore, they are not liable. If no duty is imposed, there is clearly no liability. In the case of The Mayor of Albany v. Cunliffe, (2 Comst. 173,) where the liability of a corporation to an action of this nature was fully discussed, Cady, Justice, remarked, that he had found no case in which a person had been held liable for negligence in the performance of any work, unless his negligence was in violation of a contract, express or implied, or of a duty which was imposed on him by law.

The supreme court, however, in the case of the Mayor, &c., of New York v. Furze, in error, from the Common Pleas, (3 Hill, 612,) have given a construction to this 175th section, on" the very point now under consideration. The action was brought in the court below by Furze against the Corporation for not keeping certain Sewers in proper repair, and the same objections were made, as in this case : 1. That there was no obligation on the part of the defendants to keep the sewers in repair: and, 2d, That the defendants were not liable to an action at law, either as commissioners of highways, or as a municipal corporation, for nonfeasance of themselves or their agents. With regard to the first objection, the chief justice, in delivering the opinion of the court, said, in relation to this same 175th section, which embraces sewers as well as streets : “ This statute is one of public concern, relating exclusively to the public welfare ; and though permissive merely in its terms, it must be regarded upon well settled rules of construction as imperative and peremptory upon the corporation. When the public interest calls for the execution of the power thus conferred, the defendants are not at liberty, arbitrarily, to withhold it. The exercise of the power then becomes a duty, which the corporation are bound to fulfil.” And after citing several authorities in support of these positions, he added, that the inference deducible from the various cases on this subject, seems to be, that where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.”

We would not be understood to go the length of deciding, that whenever a street is opened by the corporation on paper, or by proceedings under the statute, it is their duty forthwith to regulate and pave it. There are several steps in the matter, all which, we apprehend, are in the legislative discretion of the corporation. It belongs to them in the exercise of their discretion, to determine, 1st, when a street shall be actually opened for the accommodation of the public; 2d, how it shall be worked, whether as a ■ road or street;" 3d, when it shall be regulated, and the curb and gutter set; and 4th, when it shall be paved ; but after they have actually opened it for the public accommodation, and by their acts invited the public to travel over it, the duty then becomes absolute to keep it in repair. There is-solid reason in holding them to be thus bound. The fee of the streets is vested in them, they alone have the power as well as the means to repair : and if they are not bound to do so, there is no person or body corporate which can be called on to perform the office, but the comfort and security, and even the lives, of the multitudes which throng our streets, are entirely unprovided for.

It does not follow, from this doctrine, that the corporation is liable for every obstruction or- nuisance created by third persons, in the public streets, in violation of the city ordinances. There is a manifest distinction between the political powers of a municipal corporation, by virtue of which it exercises, in a subordinate degree, the functions of government, and those private and civil duties of a ministerial character merely, which devolve upon it, either as the tenure by which it holds its property, or in consequence of duties imposed upon it by the sovereign authority. The first are partly legislative and partly executive, and sometimes even judicial in their character ; and it is a fundamental principle, that officers exercising these high duties, cannot be held answerable for the mode in which they exercise them, except by impeachment or indictment. But with regard to the latter, there is no difference, as to liability, between a municipal corporation and an individual. (Bailey v. the Mayor of New York, 3 Hill, 521; the Rochester White Lead Company v. the City of Rochester, 3 Comstock, 463.) Neither is there any conflict between the doctrine of the present case, and that of Levy v. the City of New York, in this court, (1 Sandford’s Superior Court Reports, p. 465.) The suit in that case was brought against the city, for an injury sustained by the plaintiff in consequence of a swine running at large in the street, contrary to the corporation ordinance ; and we held that a municipal corporation authorized to make ordinances for the-good government of its streets and citizens, and which passes such ordinances, is not responsible for injuries arising from their neglect or violation. We might have added, if the case had called for it, that even if the corporation had neglected to pass such an ordinance, they would not have been liable to an individual for such neglect. And in entire accordance with this principle, we have decided at this term, in the case of Grif fin v. the Mayor, Aldermen, and Commonalty of New York, that the defendants are not liable to a private individual, for injuries sustained in consequence of rubbish being thrown out on the street by third persons ; it not appearing that the corporation, or an)" of its officers, were notified of the fact, and required to have the rubbish removed ; in other words, that they are not answerable in this mode, for not making or not enforcing proper public regulations for the welfare of the city and the comfort of its inhabitants. But where an individual or corporation have a fixed and certain duty assigned to them, of a merely ministerial character, and the means placed at their disposal are sufficient for its performance, they are under obligations to perform it, at the risk of being made to answer for the consequences of their neglect.

III. The only remaining question is, whether the defendants are liable in a private action, or by indictment only. This question has been already answered indirectly. It is settled, however, by the most indisputable authority, that whenever an indictment lies for non-repair, an action on the case will lie at the suit of an individual sustaining any peculiar damage, arising either from non-feasance or-mal-feasance. Such was the decision in the Mayor of Lyme Regis v. Henly, which went from the court of common pleas, in England, to the king’s bench, and from thence to the House of Lords ; both appellate courts affirming the decision of the court below. (5 Bingh. 91; 3 Barn. and Adolph. 77; 1 Bing. N. C. 222.) Park, J., in delivering ■ the opinion of the judges in the House of Lords, said, that in order to make the -corporation liable, these four things must appear : 1. That the corporation were under a legal obligation to repair. 2. That such obligation was matter of so general and public concern, that an indictment would lie against the corporation for not repairing. 3. That the place in question was out of repair and 4. That the plaintiff had sustained damage beyond the rest of the king’s subjects. All these requisites exist in the case before us. The obligation of the defendants to repair, we have shown is absolute. That an indictment would lie against them for not repairing, is conceded. The neglected state of the road was abundantly proved on the trial; -and the damages sustained by the plaintiffs have been settled -by the verdict of the jury ; so that the case is brought precisely within the principles laid down by Mr. J. Park.

The doctrine of the Mayor of Lyme Regis v. Henly, has been recognised as good law by the supreme court in the cases of the Mayor, &c., v. Furge, and Adsit v. Brady, before referred to ; and also by the court of appeals, by Mr. Justice Cady, in the Mayor, &c., of Albany v. Cunliff (2 Comst. 165).

For these reasons, we think that the exceptions of the defendants to the decisions and charge of the judge were not well taken ; and that the plaintiffs are entitled to judgment.

Oakley, Ch. J., and Paine, J., concurred.

Sandford, J.,

dissented, and delivered the following opinion: The complaint charges the defendants with 11 negligence and carelessness, in not having or keeping in repair and in a safe condition, the usual and ordinary travelling portion ” of “ one of the public streets or thoroughfares of the city of New York,' known as the Fourth Avenue by means of which, the plain-1 tiffs’ carriage and horses were precipitated from the avenue, about forty-five feet, into an excavation in the centre of the-avenue. The horses were killed, and the carriage destroyed. The answer puts in issue the injury ; and denies that it occurred by reason of any carelessness, negligence, or wrongful misconduct on the part of the defendants. It alleges that the excavation in the avenue was made by the Harlem Railroad Company, pursuant to authority conferred upon it by law, and that it was-the duty of that company to keep the avenue from becoming dangerous from the excavation. The reply states, that the injury did not take place on that part of the Fourth Avenue which the-railroad company was authorized to occupy and enjoy; but upon that part, which was exclusively under the care and control of the defendants, and which was vested in them, as one of the public streets and avenues of the city ; and that it was their-duty to keep the avenue, or so much of it as was laid out and Opened for a public avenue or street, in good repair.

The action, therefore, was founded upon the duty of the city, corporation to keep the avenue in repair, and their neglect to-perform this duty. The judge’s charge to the jury, was briefly,- “ that if the defendants suffered the highway, at the place in? question, to get out of repair, and the injury to the plaintiffs resulted in consequence thereof,” the latter were entitled to-a verdict, unless their own negligence occasioned the accident. He was asked to charge them, “ that the defendants were not liable in this action, for any injury which may have resulted in consequence merely of the highway in question being out of repair which request was refused.

The injury to the horses and carriage was proved. The Fourth Avenue, as we know judicially, was one of the streets or roads laid out by .the commissioners under the act of 1807, and extends some six milés in length, from what was formerly the head of the Bowery, to Harlem river. The Harlem railroad is laid upon this avenue, under the act of 1831 (Laws of 1831, eh. 263, §§ 10,16), and the excavation referred to was made for the construction of that railroad. The point where the accident occurred, was between 36th and 37th streets ; and the avenue had been opened as a public street, by judicial proceedings, under the Act of 1813, to and above that point. It had never-been paved, though it had been regulated, and curb and gutter stones placed along the line of what was intended to be made a side walk. The space between the curb stone and the excavation made for the railroad (which was here about forty feet deep, and was open and unprotected), was very narrow ; and by means of the rains,-the ground had so washed away, that there was not room left for the passage of the plaintiffs’ carriage. This space had been used as a public road for two or three years.-

This statement presents all the facts established at the trial; and the question is, do they warrant the recovery as matter of law ? Do they show any liability, on the part of the corporation, to an action for the injury sustained by the plaintiffs ?

And, first, the liability, if any, does not arise from the city charters. It is true, the charter of 1686, granted to the city, all the streets, lanes, highways, and alleys within the city, and on Manhattan Island, for the public use and service, with full power to order and direct their repair ; but the corporation could not take private lands, without consent, to make new streets or highways, and the charter gave it no power to raise money for making or repairing streets or roads. So in the charter of 1730, the same grant of the streets, highways, bridges, &o., is repeated, with the power, in more ample terms, to repair the same, and to lay out other streets, highways, &c. As Chancellor Kent remarks (City Charter, 143), “ this is a grant of a public nature, without any private interest, or property, or revenue connected with itand he adds, that the legislative directions, and powers generally obtained on the application of the corporation, have become so ample, full, and various, that the charter power seems to be, in a great measure, absorbed and lost in the new statute powers. (Ibid. 145.)

Under the charters, the corporation became possessed of the roads and streets then existing, with no greater rights or interests in them, than are held and enjoyed by the respective towns, under our state laws. The corporation did not become seized of the fee of the land embraced within the limits of such streets or roads as property ; but it was entitled to them for the public use and service, so long as they remained streets or roads. There were no means granted to the corporation for the making or repairing of the streets and roads, nor was that duty imposed by the charter, either for a consideration conferred, or as a condition of the enjoyment of rights and privileges granted.

The corporate powers in respect of streets, roads, &c., wore soon found to be of no practical use; and they were rapidly superseded or absorbed by the statutory provisions, to which we will presently refer.' In fact, all the power exercised by the corporation at this day, is derived from the statutes ; and its duty and liability must be referred to the same source. Especially is this true of the streets, which, like this avenue, had no existence till a century after the charter, and derive their being from the Act of 1807. This city could not have laid out or established this avenue as a public road, under either of its charters ; and to hold that the city is bound by taking a charter conferring upon it existing roads, to keep in repair roads not then in being, and which, as a corporation, it could not originate, seems to us not to be consonant either to law, or good sense.

The authorities cited by the plaintiffs to show a liability founded upon the charter, do not, we think, sustain their point. In the Mayor of Lynn v. Turner (Cowp. 86), which was virtually a case of private nuisance, the corporation was bound by prescription to cleanse and keep free the creek which was obstructed. This absolute duty, probably was, as Lord Mansfield suggested the fact might be, “ the very condition and terms of their creation or charter.” In the Mayor, &c., of Lyme Regis v. Henley (5 Bing. 91, S. C. in Error, 3 Barn, and Ad. 77, and in the House of Lords, 1 Bing. N. C. 222), the corporation, by the express terms of its charter, was bound to maintain and keep in repair the pier-quay and the sea-wall which protected the plaintiff’s tenements. It was not only an express and positive condition of the grant, but it was made for a valuable consideration, viz. a grant of the tolls and profits of the quay, the remission by the crown of twenty-seven marks of the annual farm due previously from the borough, and the grant of a license to dig stones and rocks out of the sea and on the shore, for the reparation as well of the quay and sea-wall, as for the common works of the borough. Such being the duty of the borough, the plaintiff, Henley, whose tenements were injured in consequence of its neglect to keep the sea-wall in repair, had precisely the same remedy by private action, that one would have against another for damages occasioned by the latter’s omission to keep in repair a mill-dam, erected by him across a public river, under a legislative grant of authority for that purpose. These authorities show nothing more than this, that a municipal corporation, and in like manner a private person, to whom a franchise is granted on a condition or an undertaking to do some particular act or thing, is liable, for an omission to do the same, to individuals who sustain a special and peculiar injury by such omission. They do not aid the plaintiffs in this^pase, because no such condition or undertaking, with respect to the Fourth Avenue, is found in, or is to be implied from, the charter of this city.

We come next to the liability of the corporation of the city, as derived from the statute law. Within five years after Gov. Dongan’s charter was granted; the colonial legislature passed an act for regulating the streets, &c., of this city, called in the act “ the Metropolis of this Province." (Act of 1st October, 1691, 1 Van Schaack’s Gol. Laws, 8.) This act enabled the corporation to appoint surveyors of the streets, &c. (who were also to see to the laying out and regulation of streets, sewers, &c.) ; and to lay out new streets and sewers, and to recover the expense of pitching and paving the streets, lanes, and alleys of the city, by a tax upon the houses benefited thereby.

On the 7th of November, 1741, an act was passed “ for mending and keeping in repair the post road from New York to Kingsbridge.” (Yan Schaack, 211.) The preamble states, “ that the highway named ought to be kept in good repair, but the act of the general assembly then in force for that purpose, was found very inconvenient.” No allusion is made to the charter, or to any duty on the part of the city, to keep it in repair. The repair of the road, in three distinct sections, was imposed upon the inhabitants of three several portions of the city, for each of which sections the court of Quarter Sessions was to appoint a surveyor, whose duty it was to call out the inhabitants to work on the road. Penalties were imposed on them and on the surveyors, for their neglect to discharge the respective dutiep prescribed by the act. On the 25th of November, 1751 (Van Schaack, 303), a like act was passed respecting the “ Bloomendale ” road, and the inhabitants of the Bloomendale ” division or district were exempted from working on the Kingsbridge road. No inhabitant was compelled to work on the road more than six days.

The act of May 4th, 1754 (Yan Schaack, 339), in order to prevent nuisances in the city to the southward of the “ Fresh Water,” authorized the corporation, on the neglect of the owners, among other things, to pave the streets “with good and sufficient pebble stones.” The lots fronting on such streets were to be leased by the corporation to meet the expense of paving them.

The origin of the existing law respecting roads in this city, is found in the Act of October 20th, 1764 (Yan Schaack, 458), “for the better regulating the public roads in the City and County of New York, and to levy money to defray the expense thereof.” This act appointed the mayor, aldermen, and commonalty of ,the city, commissioners to regulate and keep in repair the existing highways ; and to lay out, regulate, and keep in repair such other public roads or highways as should be laid out by act or acts thereafter to be passed for that purpose. The commissioners were to appoint one or more surveyors or overseers of the roads, and to employ laborers and workmen to keep them in repair ; and they were authorized to levy such sums by tax, as might be necessary to defray the expenses of executing the act. Certain duties were prescribed for the overseers of the roads, and penalties imposed on them for neglect of duty. This act was limited to January 1st, 1770; but it was continued by acts passed December 30th, 1769, and January 22d, 1772 ; and was re-enacted, with little variation, March 9th, 1774 (Van Schaack, 547 and 633 ; edition of Laws of N. Y. from 1773 to 1790, page 38, ch. 23). The same provisions, substantially, were enacted in the “ act for the better regulating the public roads in the City and County of New York,” passed March 21st, 1787 (1 Greenl. 417), except that there was no authority to raise the expense by a tax. "W e next refer to the great act of April 3d, 1807 (5 Kent and Radcliff’s Laws, 125), under which nearly the whole of Manhattan Island was, within the next five years, laid out into blocks, with intersecting streets, by the commissioners designated in the statute. The act appointed three persons “ commissioners of streets and roads," for the purposes specified. The exclusive power was conferred on them, to lay out streets, roads, and public squares, in that part of the city lying to the northward of Greenwich lane, Art street, and North street. They were authorized to enter upon such lands as they deemed necessary to be surveyed or used for forming any street or road. They were to make and file maps of the streets and roads laid out by them. By the ninth section, the corporation was authorized to open any of the streets, roads, or public squares so laid out; and on completing the opening, the corporation was to become seized in fee of the land taken for the purpose, in trust, that it should be kept open for a public street, road, or square for ever.

On the 16th of June, 1812, was passed the “act relative to opening, laying out, and forming and extending., enlarging, and otherwise improving streets, avenues, squares, and public places in _ the city of New York,” (6 Kent and R. 518.) The provisions of this act, which was passed to provide in a proper manner, for opening the streets laid out by the commissioners, in their grand and magnificent execution of the act of 1807, are all re-enacted, in sections 177 to 190, inclusive of the “Act to reduce several laws particularly relating to the city of New York, into one act,” passed April 9th, 1813. (2 Rev. Laws, 342, 408.) In the last mentioned act, all the laws relating to streets and roads were revised. Under the head of “ Paving and regulating streets, Ae.,”' (2 R. L. 407 § 75,) is found the provision for pitching, paving, and amending the streets, by means of an assessment of the expense among “ the owners or occupants of all the houses and lots intended to be benefited thereby,” similar to the mode pursued from the year 1691, under the statute of that year. “ The regulation and repair of public roads,” forms another head of the act of 1813. It continues the corporation as commissioners to regulate and keep in repair, the present and future roads or highways, in the city, (2 R. S. 433, § 193, Ac.) in the same manner as the law then was, and as it had been since 1787- Another subdivision of the act is entitled, “ Opening and laying out streets, Ac.,” and contains the sections of the act of 1812, before mentioned. It is true, the sections speak of opening “ any street, avenue, square, or public place,” without naming roads or highways; but it describes them as those “ laid out by the commissioners of streets and roads,” Ac., under the act of 1807. ■

Continuing in legislation the distinction between streets and roads, the last amended charter of the city, (Laws of 1849, ch. 187, page 278, Ac.) which distributes the executive business of the city into various departments, creates a “ street department,” and a “ department of repairs and supplies each having a distinct head, elected by the people of the city. To the “ street department” is given, among other things, the cognizance of opening, regulating, and paving streets, and the construction of public roads, when done by assessment - And the collecting the assessments connected with the expenditures for those purposes. To the “ department of repairs and supplies,” is given, among other things, the cognizance of all repairs and supplies of and for roads and avenues, and also for public pavements, as distinguished from those made by assessment on the adjacent houses and lots. This department contains four bureaus, or branches,' the chief officers, of two of which, are denominated respectively, the “ Superintendent of roads,” and the “ Superintendent of pavements.” (Act of 1849, § 9,12,13.)

From this summary of the statutes, it appears that, for almost a century, a distinction has been maintained in all the legislation concerning the city of New York, between streets and roads or highways, in respect of their being amended and kept in repair. The corporation, as such, was enabled to pave and repair the streets of the city, by means of a local assessment on the houses and lots benefited, while it had charge of the roads or highways, as commissioners, with power to appoint overseers of roads ; and with no authority since 1787, to levy the expense of repairs by any local or general tax or assessment. As recently as 1849, we see this distinction made in the most pointed manner, the care of the roads being vested in a different department from that exercising the general authority of paving the streets. Indeed, it is - separated from all those public works, the expense of which is defrayed from local assessments on the property benefited. Nor is this an unmeaning distinction, in the proper use of language. A street, strictly defined, is a paved way or road : a highway or road, is an open way or public passage;—it is ground appropriated for travel, forming a communication between one city or town and another. A public way leading from one part of a city to another, as from the Park to the Battery, (and such are universally paved in some mode,) is a street; one leading from the compact part of this city to Harlem, or to Manhattanville, is a highway or road.

The act of 1807, for laying out the suburban part of the city, did not lose sight of this distinction. The commissioners were to lay out streets and roads.. And although in the act of 1812, revised in 1813, for opening streets, &c., there is no express provision as to opening roads by that designation, reference is had to the work of the “ commissioners of streets and roads ” of 1807 ; and the omission is probably owing to the fact, that all the public ways laid out by those commissioners, were denominated either streets or avenues, on their maps. It could never have entered the legislative mind in 1812, that all the ways thereafter to be opened for public travel, in that part of the city covered by the commissioners’ map, a tract from seven to eight miles in. length, and about two miles in breadth, no portion of which was then built upon, either as city or suburbs, were to be streets, in the proper sense of the word, from-the very date of their being opened respectively. The prophetic augury of the wonderful growth of the city, which dictated the act of 1807, and the action of the commissioners under that act, marking out and preparing so large a space for its regular and systematized expansion, rightly anticipated that, in the progress of that expansion, many, if not most of the public ways thus marked out, would necessarily be opened and used for public travel to and from the compact parts of the advancing city, some for longer and others for shorter periods, before the accretion of a dense resident population upon such ways would call for the great outlay of expense requisite to make them graded, regulated, and paved streets ; which expense, from 1691 to this day, has been levied on the adjacent property, as being peculiarly benefited by such improvements.

We know, though it is perhaps knowledge which we cannot act upon judicially, that in the conduct of the business of the corporation for a very long period, portions of streets and avenues laid out, and so termed by the commissioners, and after-wards opened under the act of 1813, have been worked as common highways, or as the usual phrase is, as “ public roads and as such, used for travel many years before they were' required as streets, or were regulated and paved. While in this transition state, such streets and avenues are not streets in the proper use of that word, or within its meaning as used in section 175 of the act of 1813 : they are roads or highways.

The circumstance that in the section under which streets are regulated and paved, they are denominated streets before any such work is done, does not impair the argument. They are spoken of as “ streets,” in anticipation of what they are to be when made. The same form of expression is frequently used in providing for the forming of various objects of legislative creation. While inchoate, they are designated by the name appropriate to them only when completed.

It h§is been suggested, that as there were no roads laid out by that name by the commissioners under the act of 1807, all the ways by them laid out are streets, and nothing else, from the moment they are opened by law. What we have said, in a great measure, answers this suggestion. They were called streets and avenues on the commissioners’ map ; and it was fully expected they would become streets in the progress of time. Whether they should be opened at all; when they should be opened; and how they should remain after opening—whether as a common road, or a street made at the expense of the owners of the adjoining lands-—rested in the uncontrolled discretion of the corporation. If, in mercy to such owners, the corporation choose to continue the streets, when opened, as public roads, worked at the common expense of the city, instead of visiting upon them, as soon as the street is opened by law, the heavy expenses incident to the regulating, paving, &c., under the 175th section, no citizen or court can call in question its determination. In constituting the mayor, aldermen, and commonalty, &c., commissioners in the manner described, the legislature conformed the regulation of roads in this city to the general system adopted at an earlier period, respecting roads in the other counties of the province. That was a system of officers, described as “ commissioners to regulate and keep in repair,” &c., the highways, using precisely the same words in such description as are contained in the act of 1764, and the subsequent acts regulating public roads in the city of New York, together with overseers of highways under them. Thus, in 1732, such commissioners were organized in each township and precinct of Suffolk county ; in 1744, in the county of Dutchess ; in 1745, in Westchester county ; and by an act of the same date, in the counties of Kings, Queens, Richmond, and Orange; in 1756, in Ulster county ,• in 1760, in Albany county. (Livingston and Smith’s Colonial Laws, vol. 1st, pages 203, 345, 359, 365 ; vol. 2d, pages 85,190.)

This system gradually succeeded the one prescribed by the first colonial act on the subject, May 6th, 1691 (Van Schaack, 3), by which three “ surveyors and orderers” were to be chosen in each town for like purpose. The officers thus originated by the later colonial acts, are the “ commissioners of highways” of our state legislation, though they were not designated by that form of words until 1787. (See the acts of March 11th, 1779 ; May 4th, 1784; April 20th, 1787; and March 21st, 1797; Laws N. Y. 1773 to 1790, page 64 ; 1 Greenleaffs Laws, 105, 458 ; 3 ibid. 252.) Their powers and duties have remained substantially the same from the time of their origin, so far as they affect the questions before us.

In this case, there was no evidence which proved the Fourth Avenue, at or near the place where the accident occurred, to be a street, within the meaning of the 175th section of the act of 1813. On the contrary, the proof was decisive, that, although opened, it never had become a street in that sense. It was simply a road or highway, at the place in question, and the liability of the corporation is to be derived from sections 193 to 197 of that act.

In regard to roads, the corporation (or the common council) are commissioners to regulate and keep them in repair. The full control of the roads is given to the corporation, as it is to commissioners in towns; but no power is conferred to raise the requisite means, either by a tax, or by calling out the adjacent inhabitants to perform labor upon thepi- The power of the corporation as commissioners, is similar to that exercised by the commissioners of highways in towns, for more than a century, and the duty imposed is commensurate with that devolved upon those commissioners. That duty is not absolute, and to be performed under all circumstances, but is an imperfect duty, dependent upon the facts—that the commissioners have the requisite funds or means to discharge it, that notice of the want of reparation has been communicated to them, and the like. It follows, that to establish a liability for its neglect, the facts necessary to show that the duty existed, must be proved. Thus, it has been decided, that to maintain an indictment against commissioners of highways, for neglect of duty in not repairing a bridge, it must be averred that they had funds in their hands, or other specific means provided by law, for that purpose. (The People v. Commissioners of Highways of Hudson, 7 Wend. 474; The People v. Adsit, 2 Hill, 619; Barker v. Loomis, 6 ibid. 463.) Of course, the same proof would be necessary to maintain a private suit for damages, conceding that such a suit would lie against commissioners of highways.

But it will be said, there was no lack of funds in the hands of the corporation, to keep this and all other highways in repair ; that it has a large amount of productive property ; and every year is authorized by law to raise money by tax for all its municipal purposes and wants. Let us examine these propositions : and in so doing, we suppose that we are to judge this corporation by the same rules of law and of reasoning, that we would, i& it were an incorporated village, whose trustees were by its charter made commissioners of highways, and whose means for repairing its streets and roads, were annually granted by the supervisors of the county, or by the legislature. We shall take it for granted, that the magnitude of its municipal taxes and revenue has no bearing on the case.

First. It can scarcely be seriously urged, that the private property (so to speak) of the corporation has any thing to do with the subject. That property was not granted for the purpose of maintaining roads, nor was there any such condition attached to the grant. It was given for the purpose of municipal government, long before this avenue was in existence, or contemplated. The statutory power respecting highways, under which, if at all, the corporation is to be subjected to liability, was'conferred' independent and irrespective of the corporate property, and at a subsequent period ; and the corporation has never assumed any burden in respect of such highways, by reason or on account of its private property.

Next, as to the funds raised by tax. It may be said, in the first place, that there is no proof in the case, that in December, 1849, the corporation were possessed of any such funds; and it is no answer to the suggestion, to say that it either had the funds, or might have had them for the asking. It may be practically true—but we cannot act upon such a suggestion—that the legislature every year authorizes the city of New York to raise as much money by tax, as the city authorities deem it proper to ask for. And it may seem a very small thing to doubt that this great city, in December, 1849, and at all times, had abundant means for the repair of its roads. But we are not at liberty to act upon conjecture ; and, whether the doubt be small or great, it must be obviated by proof, where the fact is the foundation of the liability. Such moneys as the law authorizes to be raised by tax, are raised for designated objects, and they are to be drawn out and disbursed for the purposes to which they have been previously appropriated. It may, therefore, very well happen, that an appropriation for a particular branch of the expenditure of the city may be exhausted ; while in other branches there may be a surplus of the money raised by the annual tax. In point of fact, such deficiencies do occur every year.

Again, the corporation sought to be charged in this suit, is not the corporate body, which is authorized by the statute, to raise money by tax in the city and county of New York. That body is the board of supervisors, an entirely distinct legal person, and as capable of being sued as the corporation of the city. This may be seen, by reference to the acts under which moneys were thus raised in 1848 and 1849. (Laws of 1848, ch. 297, p. 429 ; Laws of 1849, ch. 276, p. 402.) This, though a sufficient answer, as to the power of the corporation to raise by tax all the funds it pleases, is, perhaps, a technical answer; but for the purposes of this suit, the argument is conclusive, upon the absence of proof that there were funds applicable to the repair of the highways at the period in question. We have seen, that in respect of roads, the duty of the corporation is an imperfect, and' not an absolute duty; and that, in such a case, it is not liable even to an indictment, without averment and proof that the duty had become absolute.

It was suggested by a very learned judge, in one of the cases cited, that perhaps, in a civil action against commissioners of highways, it would be enough to show that the law imposed the duty of repairing ; and it might be left to the officer to excuse himself, if he can, by showing the want of funds, (4 Hill, 634, per Bronson, J.) But it seems a decisive answer to the suggestion, that the law does not impose the duty, except in respect to funds existing ; and therefore the fact that there are such funds, must be found, before any duty is shown to exist. It by no means follows, that if the existence of such funds were shown, this suit can be maintained. It is supposed, that a recent case (Adsit v. Brady, 4 Hill, 630) goes far to maintain the doctrine that a civil action may be brought against a public officer for neglect of duty, in every case where an individual sustains a personal or pecuniary injury by such neglect; but the case is not strictly applicable. In the act of 1813, the corporation is empowered to appoint overseers of the roads; and as it can act only by its officers or agents, the immediate duty of causing the roads to be repaired, devolves on such overseers, and the neglect of that duty is presumptively chargeable upon them. So far as the corporation is concerned, it is a constructive negligence, by the act of its officers or servants, in discharging a. public duty, not growing out of, or founded upon any pecuniary or private benefit to the principal. In the case in 4th Hill, the action was directly against the subordinate officer or servant, and not against the canal commissioner having the charge of the canal where the injury happened ; as it should have been, if it were analogous to the attempt made to subject the corporation, in this suit.

The circumstance that the fee of the land in the Fourth Avenue, where it is opened, is vested in the corporation, has been mentioned as a further reason for subjecting it to the liability asserted by the plaintiff, irrespective of the provision of adequate funds for the repair of highways. It is said no person except the corporation and its agents can enter upon the avenue, or use its soil for the purpose of making.repairs. We.do not think the title to the soil of the road affects the case at all. The fee is vested in the corporation, merely in trust for a public road. It takes no beneficial interest in the land, in a proprietary sense. In the streets, in what is called the old part of the city, (laid out before the act of 1807,) where the fee of the soil remains in the owners of the lands fronting on such streets or roads, as is the fact in highways in towns throughout the state, any person other than those authorized by law, who enters upon and digs up the soil, becomes liable to an action by such owners, He who enters in like manner upon the streets owned in fee by the corporation, subjects himself to no greater liability —it is only to a different party.

Another argument founded upon the vesting of the fee in the corporation, is that it is upon a trust to open the land and to keep it in repair as a street, and that either on the ground of an express trust, or as a franchise for the public benefit, there is an absolute liability imposed on the corporation to keep such street in repair. The trust, by the statute, is, to keep i't open as a public street; which means simply, that the corporation shall never appropriate the land taken for a street from private owners, to any private use or purpose of property or revenue. In what way or manner it should, as a street, be improved, maintained, or kept, forms no part of .the trust; it is regulated by the express provisions of the subsequent statutes. If the trust were held to go that length, the corporation would be liable for non-repair, even if the legislature were to withhold entirely leave to raise money by tax, for the making and repairing of roads. As to this grant of the fee, for the purpose of streets, being a franchise for the public benefit, it may be said that being for the public benefit purely and solely, without any pecuniary interest or profit accompanying or growing out of it, the grant subjects the recipient to no common law liability, nor to any duty other than that imposed, by its express terms, or by subsequent statutes. We think, however, that instead of its being treated as a franchise, it is to be regarded as an incident to the legislative authority conferred upon the corporation, in respect to streets and roads, in which authority the corporation act as public officers, executing the same powers, which, in towns, are given to the highway officers chosen by the people.

We will now look into this question of the civil liability of municipal corporations, and other functionaries, for neglect of duty in re-paying highways. The plaintiffs do not claim, and there is no pretence for claiming that such corporations, when charged by statute with any specific duty, irrespective of franchise, arc subjected to a more stringent liability than public officers charged with the same, or analogous duties. And if a public officer would not be liable in a civil action, when clothed with such powers as are conferred by the 175th section of the act of 1813, the corporation is not liable in this suit, either under that section, or as commissioners of highways. It seems to have been assumed by judges in several recent cases, that commissioners of highways are liable in a civil action, at the suit of the party injured, for. neglect of the duty to make repairs if they had the needful funds, as they doubtless are to indictment; but there has never been a decision to that effect, and we believe our associates agree with us that such is not the law. It was certainly the rule of the common law at a very early period, that no private or civil action would lie in such a case. (Year Book, Easter T. 5 ed. 4, pi. 24 ; Brooke’s Abr. acción sur le case, pi. 98.) Such has been the law in England for the last four hundred years. It is the law of this state, unless changed by some judicial decision. In most of the New England States, towns have been made liable by statute, in civil actions, for injuries arising from this cause (Momer v. Leicester, 9 Mass. 249; also 20 Maine R. 246, and 17 Conn. R. 475), but we have no similar statute here. The commissioners of highways of towns, have succeeded substantially to the powers and duties as to highways, which in England devolve upon parishes (See Morey v. Town of Newfane, 8 Barb. S. C. R. 650). But unlike those parishes, they are not subjected to an absolute duty in that respect. Yet with the unqualified duty there, the only remedy against the parish is by indictment (Com. Dig. Chimin, H. 4, B. 3). And although the parishes there for centuries have appointed surveyors of highways, in most respects analogous to our overseers in towns, there is no instance of a civil action against the surveyors for an injury, by reason of their neglect to repair.

It is said, that the case falls within the principle, that 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 appropriate action. The principle is a sound one when applied to public officers who act for particular individuals, and for an equivalent reward furnished by them or by the public for such service, as in the case of a sheriff, in the execution of civil process ; but is it applicable to public officers who owe no duty to individuals and perform none especially for them, but act for the public at large, and more particularly, to such officers for a fault in their subordinates or servants ? (See Young v Commissioners of Roads, 2 Nott & McC. 555.) For a wilful and malicious omission of duty, in this class of officers, there may, perhaps, be a civil action in favor of the party injured. But for a mere neglect, without malice and not personal, it seems to be repugnant to principle to hold that such an action may be brought. Many public officers might be suggested, who would otherwise be liable for defaults not their own, to a multitude of private actions, by persons to whom they owed no particular or special duty ; and few competent men under such a rule of law, would be found to assume their duties and responsibilities. The case of a postmaster, who appoints all his own assistants, and is, in a general sense, responsible for their acts as for his own, will illustrate the liability claimed. Yet it has been most solemnly adjudged in England, that an action against him cannot be maintained (Lane v. Colton, 1 Ld. Raym. 646, S. C. 1 Salk. 17; and Whitfield v. Lord Le De Spencer, Cowp. 754). We need not mention analogous examples. They will suggest themselves to every mind.

It seems to us, the true distinction is that we have mentioned. When the duty is to individuals specially, for a reward emanating from them, a civil action may be brought for neglect, whether of themselves, or of their subordinates ; but when it is a duty to the public generally, undertaken alike for all citizens, the remedy for neglect is by indictment only, together with removal from office, when prescribed by law. It is not necessary in this case, however, to assert an exemption beyond that, from a liability for the acts of deputies or subordinate officers. If we are right in this conclusion, no civil action can be brought against commissioners of highways, for a neglect to repair, even if they had funds ; and by analogy, the corporation is not liable in such an action, whether the injury occurred upon a street or road, or in the latter event, whether the proof showed that it had sufficient funds or otherwise. Both the commissioners in towns and this corporation have under them overseers of the highways who have the immediate charge of the roads, and with this difference, that the corporation in 1849 had the appointment of the overseers, and those commissioners have not.

The only known instance in this state, of an attempt to enforce a civil remedy, in respect of highways, is the case of Bartlett v. Crozier, (17 John. 439,) where the action was brought against an overseer of highways, and the court for the correction of errors unanimously decided it could not be upheld. The only opinion delivered was that of Chancellor Kent, who, in a very learned examination of the law, held that the overseers were, in no event, thus liable ; and expressed his most decided opinion, that the same was true of the comroissioners. He said, the argument to be drawn from the English law on the subject, was very strong against the right of action. And we may add, that the fact of the opinion having been acquiesced in for more than thirty years, when injuries from defective highways are of such frequent occurrence, is also very strong against any such right of action. We do not think the authorities cited in behalf of the plaintiffs, impair the force.of the distinctions we have pointed out, nor show any peculiar liability attaching to corporations.

Great stress was laid upon the case of the borough of Lyme Regis, before cited, and especially upon the language of Park, J., in his opinion in the House of Lords, (1 Bing. N. C. 222,) who says, “ It is clear and undoubted law, that wherever an indictment lies for non-repair, an action on the case will lie, at the suit of a party sustaining any peculiar damage.” The learned judge was speaking of corporations and individuals to whom franchises had been granted, either on condition that they should repair, or do certain acts, or where they had assumed to perform the same, in consideration of property or franchises conferred upon them ; and he applied the rule to the case before him, as one of the former class. In the case cited by him from Carthew & Shower, the duty, and hence the agreement, was implied from the nature of the franchise granted—it being the privilege of keeping a ferry ; and the duty implied, that of ferrying over the inhabitants who came to use it. We cannot - imagine that Mr. Justice Park, in his general observation, intended to be understood as saying, that wherever an indictment lies for not repairing a common highway, a civil action will lie in favor of a person peculiarly injured by it, when the whole history of the English law is adverse to such a doctrine. We have before referred to some of the evidences of this ; and while the books are full of precedents, and cases of indictments against parishes for such non-repair, not a case of a private action for that cause is to be found. The case of Hall v. Smith, (2 Bing. 156,) decided in the court where Park, J., . was then a judge, and Harris v. Baker, (4 M. & Sel. 27,) are inconsistent with the universal application claimed lor his observation above quoted. As a direct authority, we have already shown that the case of Lyme Regis does not apply here. It bears upon the duty assumed or exacted .by a charter or public grant, in respect of a franchise granted, whether to a public or private corporation, or to an individual; but not to a public power or duty, created by statute, irrespective of franchise, whether vested in a public officer, or in a municipal corporation. This dictum and decision in the case of Lyme Regis, has been cited to support several judgments in this state, for which, we humbly submit, they were no warrant. Before noticing those, however, we will refer to one or two other authorities relied upon by the plaintiffs. Thus, in the People v. the Corporation of Albany, (11 Wend. 539,) Nelson, J., after speaking of the power of that corporation to cleanse the basin, for the neglect of which they were indicted, says: “ It is impossible to distinguish, in reference to the subject in question, between their power and their duty,” and that they are bound to execute the municipal powers conferred upon them, when demanded by the public interest. He further says, that, “ when a corporation, or individuals,- are bound to repair a public highway, they are liable to indictment. in behalf of the public, and to an action on the case in behalf of an individual who has sustained a particular injury ;” citing several authorities, not one of which sustains the latter' proposition. As to the corporate duty being commensurate with its power, besides the objection that such a rule divests a municipal corporation of all its legislative discretion, it is not consistent ■ with our decision in Levy v. the City of New York, (1 Sand. S. C. R. 465,) in the correctness of which, we believe, all our associates concur. And as to the civil liability for the non-repair of highways, besides what we have said of it, we ought to add, that it is a dictum, not at all called for by the pending discussion. In the. Croton Dam case, also cited by the plaintiffs, Bailey v. the Mayor, &c., of New York, (3 Hill, 531, 541,) Ch. J.. Nelson puts the liability of municipal corporations, as s.uch, and in respect to their charters, upon the true ground, viz.:— that in their private character as owners of lands, &c., they- are ■ to be regarded in the same light as private persons owning lands ; and as such owners, are bound to repair roads, &c., as individuals are bound in like circumstance. He cites the ease-of Lyme Regis, the borough of Lyme, and others ; and he might ■ have included, on their authority, the instances of duty, ratione tenures, devolved upon such corporations as well as upon individuals. In the Mayor, &c., of New York v. Furze, (3 Hill, 612,) Nelson, Ch. J., cites the Lyme Regis case, and the observation of Park, J., before quoted, and treats the latter as sound law, in its general application. ' The suit was for damages arising from the defective condition of a sewer; and the ground' upon which it seems the court finally held the corporation to be liable was, that as the sewer was built at the' expense of the owners of the adjacent houses and lots, they acquired a right to its common use; and a corresponding duty devolved upon the corporation, to keep it in proper condition and repair. This decision was much relied upon, as showing that the corporation was bound to keep in repair both streets and sewers, after they were once made, but the reasoning concerning the sewer, is inapplicable to a street or road made at the general expense. The general language used by the chief justice in respect to the civil liability of the corporation, for its omission to make new sewers, founded upon the grant of power for that purpose, was' not necessary for the decision of the case, and was subsequently re-considered, and in effect repudiated by the same court, in Wilson v. the Mayor, &c., of New York, (1 Denio, 601.)

We have already spoken of the Croton Dam case, which was one of those relied upon by the plaintiffs. We suppose it is not applicable. One judge went on the ground of agency, (2 Denio, 453,) but most of the judges put their decision on the point that the work was undertaken by the corporation, on land and for a work, which were its own absolute property, and thus the dam was built for its private and exclusive pecuniary benefit. (3 Hill, 539, 451; 2 Denio, 444, 450.) The authority of that case appears to have been much shaken, if not overthrown, by the recent decision of the court of appeals, in Blake v. Ferris.

The cases of turnpike and bridge companies cited by the plaintiffs require no comment. Their liability is the same as that of private individuals. So of those where parties have been held liable for obstructions placed by them in highways, which belong' to the class of actions for private nuisances, and are not parallel. That of Pierce v. Dart, (7 Cow. 609,) is in effect over-ruled by Lansing v. Smith, (8 ibid, 146, and 4 Wend. 9,) and is opposed to Dougherty v. Bunting, (1 Sand. S. C. R. 1,) and Thayer v. the City of Boston, (19 Pick. 514.)

So much for the cases referred to by the plaintiffs, as showing a liability to repair, and warranting the action against this municipal corporation. In respect of the civil liability of public officers in general, the case of Adsit v. Brady, (4 Hill, 630,) before referred to, is the strongest authority against the general distinction we have taken. The duty of the defendant, as superintendent of repairs on the canal, was one due to the public at large, and not to any individual, either specially, or for a fee or reward, payable by him. The liability was taken for granted, by the distinguished judge who delivered the opinion of the court, without discussion or reference to authority ; and yet, so far as we know, there is no reported adjudication, in this state or in England, which sanctions a private action in such a case. And with much deference, we submit, that a decision making such a great stride, in asserting the liability of public officers, is not entitled to the full weight of authority, where it appears not to have been made upon grave argument and mature consideration. We need not. however, dispute the case, for it does not apply to any action against a public officer, for the neglect of his deputy or subordinate.

As we have already observed, it is not asserted that a municipal corporation, acting as commissioners of highways, is liable to a private action for neglecting to repair the roads under its charge, to a greater extent, or otherwise, than the officers known as commissioners of highways in towns, are liable under the like circumstances. And we are not satisfied that for a negligence merely, any private action can be sustained against those officers. If the case were one of a street, instead of a highway, thus falling under the 175th section of the act of 1813, the corporation, as performing a public duty under a statute of the state, by its subordinate officers, would, we think, be justly esteemed to act in a quasi official capacity, and be subject to no other or greater liability than public officers would incur in the discharge of the like duties. Without deciding that point, as it is the case of a highway, in respect of which the corporation acts expressly as commissioners of highways, we cannot hold it responsible.

On both grounds, the failure of the plaintiff to establish the absolute duty averred in his complaint, by the want of proof of the requisite funds to repair the avenue, and the immunity of the corporation, as commissioners, from private actions, for a neglect to repair, we think the cause should be decided in favor of the defendants.

We were much pressed, on the argument, with the monstrous consequences of the conclusion, which, after very careful and mature deliberation, we have now formed. We cannot heed that argument, where the law is plain. If there be a defect in the law, the legislature will remedy it. Several of the neighboring states have, by statutes, applied such a remedy. Our legislature, with that example before it, has deemed it wise to leave the subject to the rule of the common law. That rule, as we have laid it down, has been well understood and acted upon, in the towns of this state, for thirty years, without any serious evils having flowed from it. If its application in this city produce the apprehended evils, the remedy is in legislation, not in judicial decisions.

In my opinion, and in that of my brother Campbell, the judgment at the special term should be reversed; but, as a majority of the judges are of a different opinion, it must be affirmed.

Judgment for the plaintiffs, 
      
       The judgment in these cases appears' to he fully sustained by that of the Court of Appeals, in the case of the Rochester White Lead Co. v. City of Rochester, 3 Comst. 463. (Reporter.)
     