
    Edwin Davidson, by Albert Davidson, His Guardian Ad Litem, Plaintiff, v. The Mayor, etc., of the city of New York, Defendant.
    (Supreme Court, New York Trial Term,
    September, 1898.)
    Municipal corporations — Not liable for negligence of an employee engaged in performing a governmental function.
    The statutory duty, imposed by section 704 of chapter 410 of the Laws of 1882, upon the commissioner of street cleaning of the city of New York of removing from the city, or otherwise disposing of garbage, etc., as often as the public health may require, is a governmental function performed in the interest of the general welfare and . the city is not liable to one who is injured by the negligence of a driver who was engaged in removing waste paper and garbage from houses on a' city street. ■
    Motion to set aside a verdict and for a new trial.
    A. Welles Stump (George C. Harrison, of counsel), for plaintiff.
    ■ John Whalen, corporation counsel (Harold S. Rankine, of counsel), for defendant.
   Chester, J.

An examination of, this case.leads me to the conclusion that I should follow the decision in the case of Bishop v. Mayor, 21 Misc. Rep. 598. In that case the injuries were caused by an empty ash cart, belonging to the street cleaning, department, while being drawn in the street. It did not appear what special duty the driver was engaged in at the time. Here it appears that at the time of the accident the driver was not engaged in cleaning streets but was employed in removing waste paper and other garbage from houses on Madison avenue. In the absence of a statute there would be no obligation resting upon the city to remove refuse from houses, but the Consolidation Act, § 704, charges the commissioner of street cleaning with the duty of removing from the city, or otherwise disposing of, ashes and garbage as often as the public health may require. This, under the principle of the case referred to, .is not a duty performed for the benefit and advantage of the city as a corporation, but is a general governmental function performed in the interest of the public health and for the general welfare of all the people. That being so, the defendant is not liable for the injuries sued for. Maxmilian v. Mayor, 62 N. Y. 162; Condict v. Jersey City, 46 N. J. L. 157.

The motion to set aside the verdict and for a new trial is granted.

Motion granted.  