
    Julia A. Bishop or Quill, Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    November, 1897.)
    New York city— City is not liable for the negligence of the driver of an ash cart. . .
    The duty imposed by the Consolidation Act (Laws 1882, chap. 410, § 704) upon the commissioner of street cleaning of removing ashes from the streets, is not a governmental duty, imposed primarily upon the city of New York, but is a duty purely statutory, and hence the driver of an empty ash cart, passing through a city street, cannot be said to be engaged in the performance of a governmental duty and the city is not liable to a person injured through his negligence..
    Action for injuries sustained by being struck by an empty ash cart drawn in the' streets.'
    A. P. Ketchum, for plaintiff.
    F. M. Scott, corporation counsel, for defendant.
   Dugro, J.

This case turns upon the nature of ■ the duties imposed upon the stré'et cleaning department; if governmental, or partly so, the verdict cannot stand; otherwise it can. In Ehrgott v. Mayor, 96 N. Y. 271, the Court of Appeals says: “ It is settled that municipal corporations having the powers ordinarily conferred upon them respecting streets within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil .action for special injury resulting from neglect to perform this duty.” The duty to keep the streets in a safe condition carries with it by implication a duty to keep them "reasonably clean. Hence the duty of cleaning the streets is primarily upon the corporation, and so not governmental. If, therefore, the cleaning of the streets was the only duty imposed tipon the street cleaning department,' the department would be solely the agent of the corporation for the performance of corporate duties beneficial to the corporation. The Consolidation Act contains this provision: “ The commissioner of street cleaning * * * is hereby charged with the duty of removing, from said city,. or otherwise disposing of, as often as the public health and use of the streets may require, all street sweepings, ashes and garbage, and of removing new-fallen snow from the leading thoroughfares, and such other streets and avenues as .may be found practicable.” § 704. It will be noted that the department is charged with a duty to remove from the city * * * as often as the public health may require, ashes and garbage * * '' * and new-fallen snow. The removal of these is no corporate duty; it is a public service. The ashes and garbage are to be removed from the city, not from the street specifically, for the welfare and convenience of the public. Howhere in.the act is there a specification that the ashes and garbage to be removed should be that in the street only. In point of fact the department removes quantities of ashes and garbage which are never in the street, except during the times of removal. The city, as such, is not benefited, nor is- it by the act 'sought tu be benefited by the removal of new-fallen snow. The removal of the snow is for the public convenience. There is no duty primarily upon a corporation to remove new-fallen snow. The city is merely obligated to use care to remove accumulations of snow or ice, and such formations :as may be obstructions to the use of .the street as such. This duty arises, among other things, from the facts of the city’s control, interest and right in the street and its bed, and the right of use in the public. The duty of cleaning streets is primarily that of the corporation, and rests upon the city independent of the statute. The duty of removing ashes, garbage and new-fallen snow is not primarily upon the corporation, and, independent of the statute, the city would be under no obligation to remove them. The latter duty is, therefore, governmental, and the former not. As the duties charged upon the department in question are in part governmental, and as the case does not disclose the duty in which the driver was engaged at 'the time of the accident, it is not possible to say that he was acting upon the time in qrrestion in the performance of a duty imposed primarily upon the city. I have examined the cases of Barney Dumping Boat Co. v. Mayor, 40 Fed. Repr. 50, and Engle v. Mayor (see note by editor), id. 51. These cases were held to turn upon the question of the city’s duty to maintain its streets in fit and suitable condition for the use of those who resort to them. In these cases the negligent acts complained of were committed while refuse from the streets was being removed. The courts were, therefore, not called upon to consider the fact that the street cleaning department was not only to clean the streets, but to remove ashes and garbage and new-fallen snow from the city. Mayor v. Workman, 67 Fed. Repr. 348, and Maxmilian v. Mayor, 62 N. Y. 162, support what has been written.

The motion -for a new trial must be granted. ■

Motion granted.  