
    SUPREME COURT.
    The People ex rel. Richard W. Ryan agt. The Civil Service Supervisory and Examining Boards of the City of New York, &c.
    
      Civil service laws — New York (city of) officers and employees of the aqueduct commission are local officers and subject to the civil service regulations of the city.
    
    Officers and employees of the aqueduct commission, created and appointed-under and by the provisions of chapter 490 of the Laws of 1883, are local, officers ; the functions they are to perform are for the peculiar corporate and pecuniary benefit of the corporation of the city; the corporation of the city of New York is liable for their acts; they are agents of the city and the act expressly recognizes the city’s liability upon their contracts.
    The appointees and employees of the aqueduct commissioners should be examined by the civil service boards of the city of New York as local city officers, and not by the state civil service commissioners as state-officers.
    
      New York Chambers,
    December, 1885.
    
      
      Cary & WMtridge, attorneys for relator; F. W. WMtridge, of counsel.
    
      M Henry Lacombe, counsel to the coloration attorney for the respondent; D. J. Dean, of counsel.
   Lawrence, J.

This is an application for a peremptory mandamus to compel the civil service supervisory and examining boards of the city of New York, and Charles H. Woodman, the secretary thereof, to entertain the application of Richard W. Ryan and notify him to appear for examination pursuant to the New York city civil service regulations:

It appears by the affidavit of the relator that he has applied, to the secretary of the said boards for examination for employment by the commissioners for building the new Croton aqueduct, and that his application has been refused on the ground that the said commissioners are not officers of the city of New York and their employees are -not included within the civil service of the city of New York. It appears also from the papers submitted on the part of the relator, that in the month of August, 1884, the mayor of the city arranged a certain classification of the civil service of the city of New York, and-that in such classification were included the clerks and employees of the aqueduct commission, and that such employees were so included after consultation with the state civil service commissioners, and upon their advice that such employees were persons in the employ of the city and not of the state. It appears from the papers read by the counsel to the corporation, that the contrary opinion has been expressed by him and his predecessor in office, and this proceeding has been brought forthe purpose of determining whether officers and employees of the aqueduct commission are subject to the civil service regulations of the city or those prescribed by the state civil service-commissioners. It cannot be disputed that the aqueduct commissioners are new officers, and that at the time of the passage of chapter 490 of the Laws of 1883 creating such commissioners, there were no officers in existence in the city government who were authorized to exercise the powers confided to said commissioners by said act This, however, is not con-elusive upon the question whether the commissioners are to be regarded as state or city officers. Nor does the case of The People ex rel. Wood agt. Draper (15 N. Y. Rep., 532) determine the question which is here presented for consideration. That case holds that section 2, article 10 of the constitution of 1846 leaves the legislature at liberty to provide for the election or appointment, in any manner it may deem suitable, of all officers, local or general, whose offices might thereafter be created by law; and also of all other than county, city, town or village officers whose offices were then in existence, but the mode of whose election or appointment was not prescribed by the constitution.

Under that decision the legislature may create a new city office and may prescribe the manner in which the same may be filled, whether by election or appointment, or in any manner it may deem suitable.

The case of the Metropolitan Board of Health agt. Heister (37 N. Y. Rep., 661), is to the same effect (see, also, People agt. Pinckney, 32 N. Y., 382).

Some light may, however, be thrown upon this question by the decisions which were made by the supreme court and late -court of" errors in relation to the liability of the city of New York for acts done or omitted by the water commissioner’s appointed under the acts of 1833 and 1834, under which the Croton 1 water was first introduced into this city. The powers conferred by those acts upon the commissioner’s therein provided for were very similar, although not specified in the acts so much in detail ;.as those confided to the aqueduct commissioners of 1883.

In Appleton agt. The Water Commissioners of New York (2 Hill Rep., p. 432), it was intimated, although not expressly decided by Bronson, J., in delivering the opinion of the court, "that the remedy on the contract made- by such commissioners ■was against the corporation of the city of New York

In Bailey agt. The Mayor, &c., of New York (3 Hill, p. 538), it was held that the commissioners appointed under the act of 1834, though appointed by the state, were the agents of the corporation, and that the latter was, therefore, liable for injuries sustained by the plaintiff’s land arising from the careless and unskillful construction of a dam across the Croton river. That case subsequently went to the court of errors, and is reported in 2d Denio (p. 433) as The Mayor, &c., of New York agt. Bailey, and it was held that the corporation was liable to thud persons for injuries sustained by them by the negligent and unskillful construction of the' dam in question

If these cases have not been restricted or modified by subsequent decisions, it would appear that the aqueduct commission«ers, although appointed by the legislature, are the agents of the ■ city, and, if the agents of the city, that they are within the provisions of the act in relation to the civil service of the city.

It is said, however, by the learned counsel to the corporation that this case is within the principles stated in Russell agt. The Mayor (2 Denio, 461), Martin agt. The Mayor, &c. (1 Hill, 545), and The New York and Brooklyn Saw Mill and Lumber Co. agt. The City of Brooklyn (71 N. Y., p. 580).

In Martin agt. The Mayor, &c., it was held that a municipal «corporation is not liable for the misfeasance or nonfeasance of «one of its officers in respect to a duty specifically imposed by ■statute on the officer; otherwise if the duty is one imposed . absolutely on the corporation as suck

In that case the plaintiff sued the corporation of the city of ' Brooklyn, alleging that while Brooklyn was a village the presi- > dent and trustees instituted proceedings for the purpose of laying out certain streets, and went on to an assessment of damages pursuant to the statute. That a sum was awarded to the plaintiff for his land, proposed to be taken, and that the commis•sioners of estimate, &c., reported to the trustees, and that the ■proper notices were given and published, but though no appeal was interposed they had willfully omitted the duty of causing the report to be filed with the clerk of the common pleas of Kings county, so that it could be confirmed. It was also alleged that the board of trustees, after the assessment was returned, resolved that it was expedient to open the streets, provided the parties interested would waive the first report, the filing of the same, and the appointment of commissioners; and that a committee should be appointed to treat and agree with the owners of ground required for the streets, and the plaintiff consented to - such waiver, in writing, was willing, &c., and gave notice, &c., but that the trustees refused to proceed in the fulfillment of the agreement.

The court held, in that case, that municipal corporations were not liable for omissions of duty specifically imposed by statute on one of their officers. That, in that respect, the latter are quasi civil officers of the government though appointed by the corporation, and that the relation of master and servant did not exist between the corporation and the officers.

In Russell agt. The Mayor, &c. (2 Denio, p. 461), it was held, that the mayor and aldermen in making an order for the destruction of a building, pursuant to the statute, did not act as the officers or agents of the corporation, but as magistrates designated by the legislature for the execution of a public duty.

In that case Porter, senator, in his opinion, distinguishes the-case of Bailey agt. The Mayor, &c., from that of Bussell, on the-ground that, in the former case, “ the corporation had an interest in the grant made by the law; ” that “ it held a large amount of property under it; had passed ordinances in respect to the execution of the work and the doings of the commissioners; and, in eveiy respect, had made the work their own, and, consequently, had made the commissioners their agents.”

In The N. Y. & B. S. M. and Irumber Co. agt. City of Brooklyn (71 N. Y., p. 580), it was held, “ that a municipal corporation» is not liable for the acts or omissions of an officer elected or appointed by it, in respect to a duty specifically imposed upon the-officer, wbicb is not connected witb bis duties as agent of tbe corporation, and in wbicb it bas no private interest; ” that “ it is only bable for tbe acts or omissions of officers in tbe performance of duties imposed upon tbe corporation.”

Tbe complaint in that action alleged, in substance, that by an act to improve tbe Gowanus canal, in tbe city of Brooklyn (chap. 678, Laws of 1866, and tbe acts amendatory thereof; chap. 884, Laws of 1867; chap. 793, Laws of 1869, commissioners were appointed to dock tbe sides of said canal, tbe expense to be assessed upon tbe property; that tbe commissioners caused docks to be erected in and upon plaintiff’s land, adjacent to said ' canal, but prosecuted tbe work so negligently that tbe dock; sank; that by an act passed in 1871 (chap. 839, Laws of 1871), it was provided that tbe common council of tbe city should cause tbe docks to be repaired or rebuilt at tbe expense of tbe • city; that thereby tbe duty to rebuild tbe dock on plaintiff’s land was imposed upon tbe city, wbicb it bad neglected to perform, to bis damage, &c.” TJpon demurrer to tbe complaint it was held, that tbe court could not take judicial notice that tbe canal was a public highway, and, in tbe absence of allegations to that effect, could not presume it to be such; that so far as . appeared, tbe work was for tbe benefit of individuals solely; that it appears by tbe amendatory act of 1869, to have been tbe .intention of tbe legislature to substitute tbe common council for tbe commissioners, without affecting tbe relations of tbe city to tbe work; that both bodies were to be regarded as tbe agents ■ of the state, not of tbe city, and for their acts or omissions tbe city was not bable; that tbe act of 1871 did not impose tbe duly ■ of rebuilding upon tbe city, but tbe directions therein to tbe ■ common council, it was to be presumed, were given to them as state agents, and that therefore tbe city was not liable.” It was . also held “ that tbe fact that tbe expense of rebuilding was cast upon tbe ci1y, did not affect its liability.”

It will be observed upon examining the three cases last cited, that they are placed upon the ground that tbe work to be done, ■was not a corporate work, but was either a work for tbe benefit of private persons, or directed to be done by tbe statute of the-state, having no relation to corporate duties or interests.

In that case Church, C. J., at page 584, says: “A municipal corporation is' held liable for the acts of an agent it employs to do business for its own corporate or private benefit, the same as a private individual, and this although the agent may be appointed by the legislature or under legislative authority, if it accepts and ratifies the appointment,” and he cites approvingly the case of Appletori agt. The Water Commissioners (2 Hill, 433), to which I have above referred He also, says that “We have recently held that a municipal corporation is not liable for the omission to perform or for negligence in the performance of a public duty, laid upon an independent officer, in which it has no private interest, and from the performance of which it derives no special or corporate benefit, although it is required to elect or appoint such officer, and although the officer has it in charge, and the negligence imputed is the use of property pwned by the-corporation,” citing Maximilian agt. The Mayor, &c. (62 N. Y., 160), and other cases.

Folger, J.,

in delivering the opinion of the court in Maximilian agt. The Mayor, &c. (62 N. Y., 170), after having referred to certain cases, and among others to • that of Bailey agt. The Mayor, &c. (2 Denio, 433), says at page 170: “It is not always easy to say within which class a particular case should be placed.. But when it is determined that the power and duty are given, and taken for the benefit of the corporation as a corporate body, and the act to be done is to be done by it through agents of its. appointment and under its control and power of removal, there-is no doubt of its liability for negligent omission or negligent attempt at performance. When the powers created and duly enjoined are given and laid on officers to be named by the-corporation, but for the public benefit and as a convenient, method of exercising a function of general government,, and the-corporation has no immediate control nor immediate power of removal of those officers, nor of their subordinates and servants*., then it is not liable for their negligence, omission or action.”

In that case it was held that, the city corporation was not liable for the negligence of an employee of the commissioners of charities and correction in driving an ambulance wagon belonging to the city which struck and caused the death of the plaintiff’s intestate, and it was held that the' duties of such commissioners were public in their character, and that from their performance no special corporate benefit is derived.

Is it not, however, clear that from the work to be performed by the aqueduct commissioners a special corporate benefit will.. be derived by the city of New York, and can it not with much force be urged that, under the decision in the Maximilian case and the cases of Bailey agt. The Mayor, &c., and Appleton agt. The Water Commissioners (supra), the aqueduct commissioners, though appointed by the state, are to be regarded as agents of ' the city, and therefore city officers? As I have already said, the duties which were to be performed by the water commissioners under the acts of 1838 and 1834 were very similar to • those confided to the aqueduct commissioners under the act of 1883, and it seems to me that if the former commissioner's were * regarded as the agents of the city, the latter must be also.

By section 1 of the act of 1883, chapter 490, the mayor,. comptroller and commissioner of public works, and certain, individuals therein named, are appointed commissioners for the • purpose of supplying the city with an increased supply of pure ■ and wholesome water. The salary of the commissioners is to ■ be fixed by the board of estimate and apportionment The commissioner of public works is to prepare plans, &c., which, are to be submitted by him to the commissioners, who may adopt, modify or reject the same in whole or in part The - plans are to be filed, &<x Maps are also to be prepared by the commissioner of public works, to be filed as in the act specified ; and the counsel to the corporation, for and on behalf of ' the mayor, aldermen and commonalty of the city of New York, is required to apply to the supreme court for the ■ appointment of commissioners of appraisal, to appraise the compensation to be made to the owners, &c., of the real estate - proposed to be taken, &c., for tbe purpose indicated in tbe act The fee of tbe lands taken is to be vested in the mayor, aider-men and commonalty of tbe city of New York. Tbe corporation counsel is to present tbe report of tbe commissioner’s for confirmation, Tbe awards made by tbe commissioners, when ¿confirmed, are to be paid by tbe city within four months. In case of default, a right of action therefor is given to tbe party in whose favor tbe award is made. It is also provided that tbe .aqueduct commissioners, subject to tbe approval of tbe board of estimate and apportionment of tbe city of New York, may ■agree with tbe owners, &c., as to tbe amount of compensation to be paid to such owners for tbe taking or using and occupying of real estate.

By section 25 of tbe act, upon filing tbe oath of the commissioners of appraisal, &c., tbe commissioner of pubbc works shall from time to time, as may be necessary, prepare and submit to tbe aqueduct commissioners and to tbe counsel to tbe corporation, forms of contracts and specifications and bonds for tbe faithful performance thereof. It is further provided that said forms shah be either approved or rejected by tbe said aqueduct commissioners, and shall be approved as to form by tbe counsel to tbe corporation; and in case of rejection of tbe same, said commissioner of pubbc works shah prepare and submit other forms, &c. It is further provided that tbe aqueduct commissioners shah determine what provisions shall be embodied in said contracts in order, so far as may be possible, to save tbe city from loss, embarrassment and litigation by reason of any work done or suppbes furnished thereunder.

By section 30 it is provided that tbe contracts when awarded shah be executed in triphcate by tbe contractor or contractors on tbe one part and tbe aqueduct commissioners, acting for tbe city of New York, on tbe other part Two of said originals are to be filed, one in tbe finance department, tbe other with the aqueduct commissioners, and a copy thereof shall be furnished to tbe department of pubbc works.

, . By section 31 the salaries and compensation of the persons •employed as provided for in this act * * * shall be paid by the comptroller of the city of New York on the certification of the said aqueduct commissioners or of such person or persons as may be designated by them. It is also provided that the various sums of money growing due from time to time under the terms of the several contracts made for the doing of the work and furnishing the material required by this act shall be paid by the comptroller, &c., on the certificate of the said aqueduct commissioners or such person or persons as may be designated by them.

By section 32 the comptroller is directed to raise, from time to time, on bonds of said city such sum of money as shall be sufficient to pay for any real estate and all damage, &c., * * * and also in paying for the construction of said aqueduct

By section 34 the mayor and comptroller are authorized to sign said bonds, and it is made the duty of the clerk of the common council to countersign the' same and affix thereto the seal of the said city.

By section 39 the commissioners shall in every calendar month file in the office of the comptroller of the city of New York an account of all expenditures made by them, or under their authority, and of all liabilities incurred by them during the preceding month, and an abstract of each such aqcount shall be published in the City Record.

By section 40 no person shall be appointed by the said aqueduct commissioners as inspector or superintendent who shall not be certified by at least three members of the commission to be competent, &c., and by section 41 the commissioners are authorized to provide suitable offices, &&, * * * and to employ a secretary and all necessary clerks, messengers and employees, subject to the approval of the board of estimate and apportionment of the city of New York

It is apparent from the provisions of the act that the work confided to the aqueduct commissioners is a city work, and one in which the corporation has a direct corporate and pecuniary interest. It • is also conceded that the corporation has accepted, the appointments made by the act of 1883, and is proceeding to-avail itself of the provisions in said act contained. This seems to me to bring the case within Appleton agt. The Water Commissioners (2 Hill, 433), cited and approved by Church, C. J.,. in his opinion in the N. Y. & B. S. M. and L. Co. agt. The City of Brooklyn (71 N. Y., 584). The case seems to be distinguishable from that of Maxamilian agt. The Mayor (62 N. Y., 160), on the ground stated by Folger, J., in his opinion at page-170. It is hardly necessary to cite an authority to show that the work in question is a city work or purpose, but if it be-necessary, the opinion of Earl, J., in The People ex rel. Murphy agt. Kelly (76 N. Y., 487), is conclusive. The learned judge-says : “ It is impossible to define in a general way with entire-accuracy what a city purpose is within the meaning of the constitution. * * * It would not.be a city purpose for the city of New York to build a railroad from that city to Philadelphia,, or to improve the navigation of the Hudson river generally, between that city and Albany, although incidental benefit might flow to the city. Such works have never been regarded as-within the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of' water outside of the city and to convey it into the city, and for such a purpose a city debt could be created. So lands for a. park for the health and comfort of the inhabitants of a city could be purchased outside of the city limits, yet conveniently thereto.” See, also, the opionion of judge Earl in Walsh agt. Trustees of N.Y. and Brooklyn Bridge (96 N.Y., 437), in which it is held, that the trustees of the bridge are the agents of the two cities; and see Ehrgott agt. The Mayor, &c., of New York (96 N. Y., 274, 275).

On the whole case, I am of the opinion that the officers created and appointed by the act of 1883 are local officers; that the functions they are to perform are for the peculiar corporate and pecuniary benefit of the corporation of the city;- that under adjudicated cases the corporation of the city of New York is liable for their acts; that they are the agents of the city, and that the act expressly recognizes the city’s liability upon their contracts. Such being the case, I do not see how it can be claimed that the appointees and employees of the aqueduct commissioners should be examined by the state civil service commissioners as state officers, and not by the civil service boards of the city of New York as local city officers If, as has been before shown, they are the agents of the city, they are not the agents of the state. The legislature have simply exercised in their appointment a power which, in the Metropolitan Police case, it was held they possessed, to appoint new local city officers, but the exercise of such power of appointment did not change the local character of the office or the officer.

The case of Whitmore agt. The Mayor, &c. (67 N. Y., 21), is not in point That case simply holds that clerks of the district courts of the city of New York are not city, but judicial officers, embraced within the judicial system of the state. The decision in that case only followed the case of Quinn agt. The Mayor, &c. (44 How. Pr. R., 266, and 53 N. Y., 627).

It is contended by the corporation counsel that this proceeding is erroneously brought against nominal respondents called the Civil Service Supervisory and Examining Boards of the city of New York; that there is no corporation bearing that name; that the civil service boards have no corporate existence, and that the proper respondents to be brought into court are the individuals who compose the boards.

I think the counsel is right in this position, but as I understand him to assent that there should' be an amendment by which the respondents can be properly designated, I shall direct such amendment to. be made. Much stress is laid by the learned counsel in his brief upon the inconvenience which will result from a determination that the employees of the aqueduct commissioners are subject to examination by the civil service boards of the city of New Yorlc Such an argument cannot, of course, be taken into consideration, if the court regards it as plain that the appointees and employees of the commissioners are not exempt from such examination.

I can discover nothing in the act which entirely exempts such appointees and employees from a civil service examination, and it appears that they have neither been examined by the state board nor by the city boards. The provisions of section 40 in regard to a certificate by at least three members of the commission as to competency and fitness, are confined to appointments of inspector’s or superintendents. It is very doubtful whether, in the case of those appointees, the legislature intended that the certificate of the members of the commission should bé in lieu of a civil service examination by the state board or by the city boards. It is not necessary for me to express an opinion upon that point; but the fact that a positive provision is made in regard to the certificate of qualification, to be obtained by certain appointees, is strong evidence that the legislature intended that all other appointees should be subject to the general laws of the state in reference to examinations as to qualifications.

Let a mandamus issue in accordance with these views.  