
    GRAY v. THE CITY OF BROOKLN.
    September, 1869.
    Affirming 50 Barb. 365.
    Under a statute (Charter of Brooklyn, L. 1862, p. 203. § 39, amending L. 1854, p. 860, c. 384), declaring that a municipal corporation shall not be liable in damages for any nonfeasance, or misfeasance, on the part of the common council, or any officer of the city, &c., of any duty imposed on them by -the charter; but the remedy of the party shall be by mandatory proceedings against the city, or by action against the officer, no action lies against the city for damages for the non-performance of an obligation imposed by the act on officers of the city.
    Such act is not unconstitutional, as impairing the obligation of contracts, or as conflicting with section 3 of article VIII. of the Constitution of the State of New York, which provides that all corporations may sue and be sued, as natural persons.
    That section of the constitution was" intended to confer on corporations the capacity to be sued, not to define the cases in which suits may be maintained against them. v
    Ths words “ this act,” in section 39 of the amendatory act '{Laws of 1862, p 203), must be constr'ued as referring to the charter of 1854, as amended, and not merely to the amendatory act.
    
    The implied contract which is deemed to arise out of the acceptance of a charter by a municipal corporation,.is a contract between the city and the State, and not between the city and individuals ; and is not “ impaired ” by a statute exempting from liability for torts.
    Daniel H. Gray sued defendants, in the Supreme court, to recover damages for alleged negligence on the part of the defendants in constructing a sewer, whereby his premises were flooded. The injury was sustained after the passage of the act of 1863, quoted in the opinion.
    The defense interposed was the amendment to the city charter, made by that act.
    The complaint was dismissed after the plaintiffs evidence was put in> and the plaintiff appealed.
    
      The supreme court, at general term, affirmed the judgment, J. E. Barnard, J., delivering the opinion, and holding that the act was constitutional, and a good defense. Reported in 50 Bart). 365.
    Plaintiff appealed to this court.
    
    
      Bernhardt Hughes, for plaintiff, appellant.
    As to defendants’ duty,—cited Mills v. City of Brooklyn, 33 N. Y. 489, 499; Conrad v. Village of Ithaca, 16 N. Y. 158, 169; Rochester White Lead Co. v. City of Rochester, 3 N. Y. (3 Comst.) 463, 468; Storrs v. City of Ithaca, 17 N. Y. 104; Hutson v. Mayor, &c. of N. Y., 9 N. Y. (5 Seld.) 163; Mayor, &c. of N. Y. v. Furze, 3 Hill, 612, 615, &c.; and insisted that the act of 1863 was unconstitutional, because it applies to the city of Brooklyn only, and takes away a vested right; and it is not within the power of the legislature to exempt a municipal corporation from its legal liability, any more than it would be to exempt an individual ; nor to shield one city from its legal liability for wrongs done in its corporate capacity, and to hold all other municipal corporations responsible for negligence. That the act could not be made by construction, to take away liability under the act of 1§54. 1 Kent Com. 510, 514; People ex rel. Cunnuningham v. Roper, 35 N. Y. 639, 635; 3 Cranch, 290. And that the city, by accepting its charter, entered into an implied contract with the plaintiff to keep the streets in repair and indemnify him against its acts of negligence. Conrad v. Village of Ithaca, 16 N. Y. 163, and cases there cited; Sedgw. on Cons. Law, 635, and cases there cited; People v. Platt, 17 Johns. 195, 313, 314; 4 Wheat. 514; 6 Cranch, 144, 145; U. S. Const. I. § 10, subd. 11; People ex rel. Cunningham v. Roper, 35 N. Y. 639, 639. That the act violates the State Constitution, art. VIII. § 3. Where the remedy against others fails, the right revives. Municipal corporations are to be held to the same responsibility as natural persons, and stand, in respect to grants made to them by the State, on the same footing as would an individual upon whom like special franchise had been conferred. Bailey v. Mayor, &c. of N. Y., 3 Hill, 531; N. Y. & New Haven R. R. Co. v. Schuyler, 34 N. Y. 30; People ex rel. McConvill v. Hills, 35 N. Y. 449, 453. The legislature cannot, by acting on the remedy, impair the obligation of the contract. Morse v. Goold, 11 N. Y. (1 Kern.) 381; Bronson v. Kinzie, 1 How. U. S. 311. So long as a municipal corporation retains its corporate powers, the legislature cannot exempt it from liability. Chenango Bridge Co. v. Binghampton Bridge Co., 36 How. Pr. 136, 137.
    
      Jesse Johnson, for the defendant, respondent.
    As to the construction of the statute,—cited, Rogers v. Bradshaw, 30 Johns. 735; McCartes v. Orphan Society, 9 Cow. 437; Rexford v. Knight, 15 Barb. 637; People v. Aichison, 7 How. Pr. 341; Turnpike Co. v. People, 9 Barb. 161; Smith’s Com. on Stat. Law, 751, §§ 736, 739; 1 Dougl. 30 ; 1 Kent Com. 463, 163; People v. Draper, 15 N. Y. 532; 15 Barb. 156; Beebee v. Griffing, 14 N. Y. (4 Kern.) 335; Donaldson v. Wood, 33 Wend. 395; Turnpike Co. v. McKean, 6 Hill, 616; 10 Co. 57; 1 Pick. 105; 3 Bing. 193; 3 Roll. 137; Hob. 93; Dwar. 690, 696; Plowd. 305; ‘ 1 Show. 491; Bac. Abr. tit. Statutes, I. 5; Sir William Jones, 105; Opinion in court below, 50 Barb. 365. As to the principle of municipal liability,—Conrad, v. Village of Ithaca, 16 N. Y. 158, 163, 164; Weet v. Village of Brockport, and cases there cited," referred to in note to above decision; Lorillard v. Town of Monroe, 11 N. Y. (1 Kern.) 392; People ex. rel. Mygatt v. Supervisors of Chenango, Id. 563, 573; Morey v. Town of Mewfane, 8 Barb. 645, 649, &c.; Constitution, art. VIII., § 1; Darlington v. Mayor, &c. of N. Y, 31 N. Y. 164, 181, 182, quoting and approving Dartmouth College Case; Const, art. I. § 17; Mills v. City of Brooklyn, 32 N. Y. 489, 496, &c.
    
      
       Compare Fire Department, &c. v. Bacon, p. 127 of this vol.
    
   By the Covet.

Daniels, J.

Under the law as it existed before the act of 1862 was passed, the power to cause the streets and avenues of the city of Brooklyn to be graded, paved, and kept in repair, and from time to time regraded and repaved, was vested in the common council (Laws of 1854, p. 860, ch. 384, title 4, § 1). And, for the purpose of supplying the means of exercising that power, it was provided that the expenses of all such improvements should be assessed, and be a lien, upon the property benefited by them. This was sufficient, after the street in question had been graded, paved, and curbed under the authority thus conferred, to render it the duty of the common council to observe reasonable care and attention in keeping it in that condition. And a careless omission to perform that duty, through which an injury should result to a person entitled to insist upon its observance, would be sufficient to maintain an action in his favor, in a court of justice, for the purpose of securing redress on account of the injury. Mayor of N. Y. v. Furze, 3 Hill, 612; Wilson v. Mayor, &c. of N. Y., 1 Den. 595; Lloyd v. Mayor, &c. of N. Y., 5 N. Y. (1 Seld.) 369; Mills v. City of Brooklyn, 32 N. Y. 489, 500.

But in the present case no such want of reasonable care and attention was shown on the part of the common council, for there was no evidence given on the trial tending to prove that this body had notice of the condition that the streets were in, or that by the exercise of proper diligence and circumspection, it should have acquired knowledge of that condition.

hTothing like negligence on the part of the common council was, therefore, made to appear upon the trial of the cause.

Assuming, as, perhaps, that properly should be done, on ac-' count of the peculiar form given to the objection on whióh the motion for a nonsuit was granted, that negligence was shown on 'the part of the mayor and aldermen, in their omission to communicate‘to the common council the notice they had each of them received, which is certainly as far as this' court can be justified in going under the evidence, then the question arises whether the action against the city should, on that account, have been maintained.

The difficulty in the way of doing that was created by the charter of the defendant (1862, p. 203, § 39).

By this section it is provided that the city itself “ shall not be liable in damages for any nonfeasance or misfeasance on the part of the common council, or any officer of the city, or appointee of the common cauncil, of any duty imposed upon them or either of them by the provisions of titles 4 and 5 of this act, or of any duty enjoined upon them or any or either of them, as officers of government, by any other provision of this act,, but the remedy of the party or parties aggrieved, for any such nopfeasance or misfeasance shall be by mandamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, officer or appointee, as the rights of such party or parties may by law admit if at all.”

The section was very imperfectly and inartistically drawn, but from the fact that the act containing it was an amendment of the act of 1854, which contained titles 4 and 5, while no such titles were contained in .the amendatory act, and that those titles included many of the duties imposed upon the common council and officers of the city, it must be presumed that when the legislature used the terms, “ this act,” in its reference to' those titles, it intended to refer to them as they were contained in the act of 1854, as it would be with that of 1862 incorporated into it by the amendments then made. The object of the legislature is clear, and that was to exonerate the city from liability on account of the. omission and misconduct of its officers, and to impose all the legal consequences of their acts directly upon the persons who might be guilty of such official misconduct.

And that object can be secured by no other construction of this section."

Construed in this manner, then, it includes the present action, for the real ground of the complaint, upon which it was founded, was that two of the officers of the city had omitted to perform the duties officially enjoined upon them.

The plaintiff claims, however, that he should have been permitted to have maintained his action even under this construction of that section, and several reasons have been urged in support of that position.

The validity of those reasons will now be examined.

It is clear that the plaintiff had no vested right against the city when the act containing this section took effect as a law.

It was enacted on March 37, 1863, and, except one section not requiring notice, it went into effect as a law immediately, while the injury to the plaintiff's premises did not occur until the December following.

This section did not impair the obligation of a contract within the prohibition of the Constitution of the United States upon that subject.

Eor, even though an implied contract arose out of the acceptance of the act of 1854, that the powers conferred by it should be used and observed for the benefit and advantage of the city, it was not a contract with the plaintiff, but between the city and the State, by whose sovereign act the charter had been conferred.

As to the plaintiff, the obligation on the part of the city was that of a mere duty, and not that of a contract.

But even if it had been, or could be deemed a contract with the plaintiff, still the legislature had the power to change, modify, or amend it, without conflicting with the provision refered to in the Constitution of the United States. For the authority under which the act was passed retained that power over it in favor of the legislature.

This was done in express terms when the power to create corporations was provided for by the present Constitution of the State, article VIII., § 51 of Constitution of 1846.

The language used was explicit, that all general laws and special acts passed pursuant to that section might be altered from time to time or repealed. When the act of 1854 was passed, it was with this important qualification attached to it by the Constitution.

And that was clearly sufficient to empower the legislature to make the change effected in it, if that was deemed advisable and expedient under the circumstances.

But it is insisted that the alteration made is inconsistent with the right °to sue corporations conferred by the last sentence of section 3 of article VIII. of the Constitution.

But that is mainifestly an erroneous view of this section.

For it was no part of the intention of that provision to render corporations liable upon all causes of action, the same as natural persons were, but merely to provide that actions might be maintained against them the same as they could against natural persons, provided the legal causes for doing so were found to exist.

It was to confer the capacity of being sued, not to define the cases in which suits might be maintained against them.

The right of action in cases of this kind arises out of the duty conferred by the statute in favor of the public, and that might have been qualified at the time of the enactment of the statute, precisely as it has. been by this amendment.

The legislature had the power to determine the form in which the franchises and obligations of ■ the municipal government should be conferred upon the city, and under the provision made by the Constitution, it did not part with the power by not exercising it at that time.

This section of the act of 1863 was not intended to divest the persons who might be affected by it of their right to redress, but to change and limit their remedies for injuries sustained by them.

And that power has always been deemed to be within the constitutional province of the legislature. Matter of N. Y. Protestant School, 31 N. Y. 574-585. The redress may not always prove to be as entirely adequate to the injury as an action directly against the corporation itself; .but even if that be conceded, it will not justify the conclusion that the act is in conflict with the Constitution on that account.

In theory the act. places the responsibility for the wrongs of municipal officials where they justly belong—upon the persons by whose misconduct they may be produced.

It should have proceded a step further than it has gone, for the purpose of securing complete redress to those entitled to demand it, by requiring the officials of the city, before they enter upon the duties of their offices, to give ample security for the payment of the judgments recovered against them under its provisions. °

The judgment should be affirmed.

Woodruff, J.

(Dissenting.)—It is not denied, and probably

can not be denied, that by virtue of its charter and the act to consolidate the cities of Brooklyn and Willi amsburgh, passed in 1854 (Laws of 1854, ch. 384), it became and was the duty of the defendant to keep the streets of the city in repair, and that for failure to do so, the defendant was liable to a party who was injured thereby. The plaintiff in this action was nonsuited at the trial, on the sole ground that by the act of March 27, 1862 (Laws of 1862, ch. 53, § 39, p. 203), the defendants are relieved from any such responsibility. [The learned judge here quoted the statute as above.]

The claim, therefore, made on behalf of the defendant, is that the city is not liable for the damages sustained by an individual from its omission to perform its duty to keep the streets in repair; but that if, by the rules of law, any or either of its officers are liable therefor, redress may be had, otherwise the party is remediless. An intention to produce such results is not to be imputed to the legislature, unless the terms of the enactment very clearly indicate such design. Against such a construction it is insisted that the liability against which it was intended to protect the city, is expressly limited to damages for nonfeasance or misfeasance of the common council or city officers, in the discharge of duties imposed or enjoined by the act of 1862 itself; that the expression “this act” clearly so limits the operation of the amendment, and that duties and responsibilities previously existing under the .charter are not affected. Without inquiring whether the statute of 1862 should be thus strictly construed, or whether, on the other hand, the words this act may not mean the act which was thereby amended, another objection to the construction contended for seems to me well founded. The terms of the act of 18G2 do not purport to exonerate the city from any absolute duty which, by force of the pre-existing laws, rested upon it as a municipal corporation, nor from the payment of damages if such duty be not performed. Granting, for the purposes of this discussion, that they are, by force of the act of 1862, relieved of responsibility for the misfeasance or nonfeasance of the common council, or of other officers in the discharge of any duty imposed upon them by any provision of the charter, there is no declaration that the city shall not be bound to the discharge of every duty imposeí upon it as a municipal corporation, and be liable for a failure to perform it.

And to my mind there is nothing in the act in question indicating such an intention. ¡Neither the terms nor the reason of the act import such an exoneration.

True, municipal corporations ex necessitate act by officers and agents, but absolute duties to act, and to perforin, rest upon them, nevertheless, as they do upon individuals, and they are responsible for their failure, as a corporation, in the discharge of such duties.

Among other duties to which they are bound by strict legal obligations, is their duty to pay their debts, duly contracted. And yet, in the raising of money for the purpose, and in their application of the money when raised, they must act through their officers and agents. I apprehend that, if an action were brought against the city of Brooklyn, upon one of its bonds duly issued, the binding character of which was not questioned, counsel would not interpose a defense under the statute now in question, averring that the breach of duty or of obligation consisted in the non-payment of the money according to the tenor of the bond, and this arose from the failure of the officers or the common council to raise or appropriate the money, or the omission of their treasurer to perform his duty to pay it over.

There is abundant scope for the operation of the statute, according to its terms, without extending it to a liability not mentioned in it. In the discharge of the actual duties devolved upon the officers of a municipal corporation, they may be guilty of misfeasance and negligence to the injury of third persons, and the question has more than once arisen whether the corporation is liable therefor.

Sometimes such officers have been deemed to be agents of the corporation, and the latter liable on the principle of respondeat superior. Oases of this kind may be within the design of the statu té, assuming, as before assumed, that the term “this act” refers to the charter.

For example, the corporation may assume the duty to construct a sewer within a street of the city. For that purpose the proper officer or agent is directed to perform the work; in the act of performance he does something or omits something which he ought not to have done or omitted, and which works an injury.

This statute would be satisfied by holding that the injured party must look to him, and not to the city, for compensation. Suppose, moreover, that by reason of the construction of the sewer, the street should be, or soon become, in a dangerous condition. The general duty to keep the streets in repair would still rest upon the city, and its legal obligations would not he satisfied until by some means those repairs were made.

In short, the statute may be held to apply to those cases in which the corporation is sought to he. charged for the misfeasance or nonfeasance of the officers as its agents. It by no means follows that there is not a clear liability of the corporation for a failure to perform a duty which rests upon it by law.

On this ground the judgment should he reversed.

M a sow, J., concurred with Woodetof, J., as to construction of.the act, hut thought, in addition, that, in terms, the section in question was limited to the act of 1862.

All the other judges concurred in the opinion of Daniels, J.

Judgment affirmed, with costs.  