
    Amelia T. Bieling, Resp’t and App’lt, v. The City of Brooklyn, App’lt, and Ripley Ropes, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Municipal corporation—Negligence—Care oe streets—Brooklyn— Laws 1873, chap. 863.
    The city of Brooklyn defended an action brought by plaintiff for injury through the falling of a wooden awning insecurely fastened, and contended that it was relieved from liability by the provision of Laws 1873, chap. 863, tit. 19, § 27, which provides that the city shall not b) liable for the misfeasance or non-feasance * * * of any officer of the city, * * * but the remedy of the party or parties aggrieved shall be by mandamus or other proceeding or action to compel the performance of the duty, etc. Defendant Ropes was commissioner of the bureau having charge of the streets. Held,, that in order to exempt the city from liability under the statute there must be a plain duty devolved upon certain officers whose misfeasance or non-feasance has caused the injury complained of; that no such duty devolved upon defendant Ropes to inspect the condition of the awning, nor was he personally at fault, and that the city was liable.
    (Brown, J., dissents.)
    2. Same.
    Unless it appears that the injury complained of was the result of the misfeasance or non-feasance of the common council, or some of its appointees or of some officer, of a duty imposed upon them, or some of them, the statute does not aid the city.
    Appeal by the city of Brooklyn from an order of the general term of the city court of Brooklyn, reversing judgment dismissing the complaint and granting a hew trial. And the plaintiff appeals from an order of the general term affirming a like judgment in favor of the defendant, Bopes.
    
      Almet F. Jenlcs, for app’lt, City of Brooklyn; F P. Bellamy, for pl’ff; John A. Taylor, for resp’t, Bopes
    
      
       Affirming 9 N. Y. State Rep., 690.
    
   Bradley, J.

The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendants. The injury was caused by the falling of an awning, under which the plaintiff was passing, on the sidewalk on Court street, in the city of Brooklyn, in December, 1883. It was placed there several years before, and the fact that the awning was covered with boards seems to have been in violation of an ordinance of the city. The evidence tended to prove that the ends of the rafters next to the building were not securely supported; that they were merely toe-nailed to it, and that the weight of snow, which had been accumulating upon the awning for some time, caused it to fall. By the weight upon the awning the nails or some of them by which the ends of the rafters were fastened to the side of the building were drawn out It does not appear that this defect in construction was apparent to passing observation, or that any examination of it was or was not made to ascertain its security. It is quite likely that the manner of construction, its means of support and inefficiency, especially to bear the weight of snow permitted to gather and remain upon it, may have been ascertained by inspection; and it is so important for the safety of travel on the sidewalk of a public street in a city that structures of that character should be adequately secured, as to call upon the constituted authorities to exercise reasonable diligence 'to see that they are so. The length of time which the evidence tended to prove the snow had been permitted to accumulate and remain upon the awning was such as to warrant the inference of notice of its condition to the city or those charged with the duty of keeping the streets in suitable condition for the public use and safety. This awning was in fact unsafe in the condition it was with the snow upon it And the evidence was such as to permit the jury to find that the plaintiff’s injury was attributable to the negligence of the city through its constituted authorities. Hume v. Mayor, etc., 74 N. Y., 264; Todd v. City of Troy, 61 id., 506.

It is, however, contended that the city of Brooklyn was relieved from liability by the provision of the statute that “ the city of Brooklyn shall not be liable in damages for any misfeasance or nonfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them, or, any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any provision of this act; but the Temedy of the party or parties aggrieved for any such misfeasance or nonfeasance 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.” Laws 1873, chap. 863, title 19, § 27. And to support the application of this exemption of the city to the present case, reference is made to the statute relating to the department of city works of the city, and providing that the commissioner of that department shall, inter alia, have charge and control, subject to the direction of the common council, of paving and repaving and repairing and cleaning streets, avenues and places, and keeping the same clear of encroachments, obstructions and incumbrances. Id., title 14, § 1, subd. 8; Laws 1880, chap. 377; also that amongst others there should be in the department a bureau having the care and charge of street cleaning, and keeping the streets, avenues and places free and clear of encroachments, obstructions and incumbrances, the chief officer of which should be called the superintendent of streets. Laws 1873, chap. 863, title 14, § 3, subd. 5. It appears by this statute that the matter of taking care of the streets was placed in the charge and under the control of the commissioner of the department of city works, qualified by being subject to the direction of the common council; and to carry out and execute the power thus vested in the commissioner, the bureau before mentioned was created, and with him was the power and duty to ap?oint the chief officer, subordinates and employees of the bureau. 'he defendant, Hopes, was the commissioner of that department nt the time of the injury to the plaintiff. It evidently was in view of the statute before mentioned that he was made a party defendant

The city was incorporated more than fifty years ago, and until 1862 no provision appears to have been made to relieve it from its full corporate responsibility. In that year such provision was inserted in the charter. Laws 1862, chap. 63, § 39. And the question of its effect was raised and considered in Gray v. City of Brooklyn, 50 Barb., 365, where it was held available as a defense, and the decision was affirmed by the court of appeals. 2 Abb. Ct. App. Dec., 267. The construction and effect of this statute was again considered in Fitzpatrick v. Slocum, 89 N. Y., 358, which was brought against the commissioners of the department of city works to recover for personal injury received by the plaintiff there, when proceeding to step onto a bridge in one of the streets of the city, and negligence of the defendants was alleged as the cause of the accident The court held that the case did not come within the provision of the statute exempting the city from liability, and that the plaintiff was not entitled to recover. And in referring to that provision of the statute, Judge Earl, in speaking for the court, said, “ we are of opinion that the exemption created by this section, Laws 1873, title 19, § 27, is not as broad as claimed. There must be a remedy in such a case where one is injured without fault of his own by a defect in one of the streets or bridges of the city either against the city or some or one of its officers. "x" * "x* That section does not exempt the city from liability to discharge a duty resting upon it and which it has not. devolved upon any of its officers.”

In the later case of Hardy v. City of Brooklyn, 90 N. Y., 435, brought to recover damages for injuries to plaintiff’s real estate in the city, occasioned by negligence in constructing a sewer, this statute was relied upon for defense. The court reiterated and approved the construction given to it in the Fitzpatrick case, and the recovery against the city was sustained. . In both of those cases that of Gray v. City of Brooklyn was referred to; and in the former, after remarking that the views expressed were pot in conflict with anything decided in that case, the learned judge said that it did not appear very clearly upon what ground the Gray case was decided; that it was a sufficient defense to the action that there no negligence was proven to charge the city.

The construction of this statute in its application or effect as an exemption of the city from liability so far as it is given by those cases is so limited as to require for the purposes of such relief that a plain duty be devolved upon certain officers whose misfeasance or nonfeasance has caused the injury complained of, and in that case only is the statute effectual to exempt the city from liability where it otherwise would be chargeable. A municipal corporation derives not only its existence, but its powers from the statute. It is not important for the purposes of the question here whether its liabilities for negligence in the exercise of its powers arise from contract implied by the grant and acceptance of its. charter, or from duties imposed upon it by statute. The municipality can perform its functions only through officers or agencies. For the discharge of those powers of a governmental or political character which are vested by the statute in officers, and those duties not placed upon it but upon officers or departments created and vested with powers for public purposes as distinguished from those for the purposes of the corporation, it is not responsible for their misconduct or neglect, to individuals suffering damages as the result of it Lloyd v. Mayor, etc., 5 N. Y., 374; Maxmilian v. Mayor, 62 id., 160; Ham v. Mayor, 70 id., 459; Smith v. City of Rochester, 76 id., 506.

There are various duties which are legitimately those of the corporation, among which is that of taking care of the streets within it. To keep them in safe condition for the public use was a primary duty resting upon the city of Brooklyn. And the departments and officers charged with that duty, except so far as otherwise provided by statute, would be treated as instrumentalities created and employed to perform for it those corporate functions and it would be responsible for the consequences resulting- from, their negligent action or omission in that service injuriously to individuals. This was the relation to the city of the department of city works, its commissioner and bureau, so far as they were •charged with that duty, and such was the liability of the city except as it was relieved from it by statute before referred to. The streets are expressly placed within the jurisdiction and power of the city and its common council. Laws 1873, chap. 863, title 19, § 21. It has been seen that the control given to the commissioner of the department of city works is subject to the direction of the common council, in which is vested the general powers of the city except so far as they are delegated by the charter to other officials. Moore v. Mayor, 73 id., 238. This qualified power is devolved upon the commissioner and the bureau which the- statute has created.

It is perhaps unnecessary to consider the question whether the doctrine of respondeat superior would have been applicable to the relation between him and the chief officer, subordinates and employees for that bureau, since the statute has provided that the heads of departments and officers of the city shall not be liable to third parties for the misfeasance or nonfeasance of any person appointed by or subordinate to them. Laws 1881, chap. 457, § 1.

The contention that this statute is unconstitutional because its effect is to defeat the application of that maxim to the relation between the commissioner and his subordinates is not sustained. The department of city works and its commissioner are within the agencies of the municipal corporation so far as relates to the care and management of the streets, and it is responsible for their negligence in the line of their duty, except so far as it is relieved by the statute from liability, for the manner of the exercise of the powers devolved upon them. That liability was qualified by the statute, and the statute last mentioned was apparently only a modification of that qualification, so as to render the commissioner responsible only for his personal official acts and omissions. This is in harmony with the common law applicable to municipal officers who are charged with the performance of corporate duties and may employ subordinates to aid in their accomplishment. The corporation in such case and not he is the superior, and liable to third persons for the injuries occasioned to them by the negligence of such subordinates. Lloyd v. Mayor, 5 N. Y., 369. There is no evidence tending to prove any misfeasance or nonfeasance of the commissioner Ropes. It cannot be assumed that he as the head of the department was required' to or did inspect or ascertain the condition, in all respects and • places and at all times, of the many miles of streets in the city.

The notice of a defective condition in a street, which may be inferred after a lapse of a reasonable time, rests upon the fact that it is within the power, and therefore is the duty of the municipal corporation, by the requisite agencies, to exercise due diligence to bring it to the attention of the' constituted authority through those instrumentalities. Rehberg v. Mayor, 91 N. Y., 137. The subordinates and employees of the commissioner are in the service of the corporation, and it is chargeable for their negligence in the line of the service assigned to them. It is not here intended to include in this term, subordinates and employees, those persons who may be deemed officers within this statute of exemption. Unless it appears that the injury complained of was the result of the misfeasance or non feasance of the common council or some of its appointees or of some officer, of a duty imposed upon them or some of them, the statute does not aid the city.

It does not appear that the defendant Eopes was personally at fault in respect to the cause of such injury, and therefore as to him the complaint was properly dismissed.

In the distribution of the powers of the department of city works with a view to their execution, those relating to the streets were placed in charge of the bureau referred to, the duties of which bureau were not expressly imposed upon its chief officer, the superintendent of streets." Whatever were his duties, it does not appear that he was personally chargeable with negligence in the matter. And he was not liable for the negligence of the subordinates and employees in the bureau. They were appointed by the commissioner. Laws 1873, chap. 863, title 14, § 3; id., title 19, § 8. And for that reason, if for no other, the doctrine of respondeat superior, as between the superintendent and them, has no application. Bailey v. Mayor, etc., 3 Hill, 531. It may be observed that the malfeasance or non-feasance of those subordinates and employees is not by the statute made a cause for relief of the city from liability.

There seems to be no evidence to support or locate any such charge against any officer or the common council, or any of its appointees, within the meaning of the statute in respect to the dangerous character or condition of the awning, or to impute to any of them the fact or inference of negligence, which the evidence tended to prove was the cause of the plaintiff’s injury; and, therefore, the defense of the city was not necessarily aided in the present case by the statute. This view is founded upon the fact that the primary duty to keep the streets in repair and use due care to give to them a condition of safety for legitimate use by the public rested upon the city; that, except so far as qualified by the statute, its liability to individuals sustaining damages occasioned solely by the fault or negligence in the performance of that duty existed; and that to relieve itself from such responsibility it must be made to appear that the cause of the injury complained of, so far as it may tend to support an action, is within the provision of the statute exempting the city from liability. That defense was not by the evidence in the present case established.

The appeal taken by the plaintiff is not effectual to bring anything into this court for review. It appears by the notice of appeal to have been taken from the order of the general term affirming the judgment in favor of the defendant Eopes. No such appeal is authorized, and none was taken from the judgment entered upon such order, and from which only it could have been taken. That appeal should be dismissed.

The order granting a new trial, from which the defendant, the city of Brooklyn, appealed, should be affirmed and judgment abolute directed against that defendant

All concur, except Brown, J., dissenting as to the affirmance of the order against the city of Brooklyn, and Haight, J., not sitting.  