Piercy v. Averill , 44 N.Y. Sup. Ct. 360 ( 1885 )

Learned, P. J.:

This is an appeal from an interlocutory judgment sustaining- a ■demurrer to the complaint.

The action is against the persons who hold the offices of mayor and of aldermen of the city of Ogdensburg. The complaint sets forth briefly, and by reference to the statute, the law which incorporated the city. It states certain duties which, by that law and its ■amendments, are imposed on the mayor and aldermen, constituting the common council, and among them it alleges are the duty of ■compelling every person to clean snow and dire from the sidewalk in front of his premises, and the duties of commissioner of highways in towns. It alleges that defendants negligently and carelessly, after full knowledge, allowed, suffered and permitted a certain sidewalk to become out of repair, and large quantities of snow and ice to accumulate there, and the sidewalk to become and remain in an unsafe and dangerous condition; and that the plaintiff, without her fault, slipped and fell on said sidewalk and was injured.

The general rule in this State is, that public officers, charged with a ministerial duty, are answerable in damages to any one specially injured by their carelessness and negligent performance of, or an omission to perform the duties of their office. (Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoof, 44 id., 113; Clark v. Miller, 54 id., 528; Bennett v. Whitney, 94 id., 302.) Of course this rule does not apply to an action which is, in any sense, judicial.

Now it is undoubtedly true that the deciding whether or not a sidewalk shall be made, and of what materials and of what grade it shall be made is a quasi judicial act. But, on the other hand, the keeping of a sidewalk or street in repair has often been held to be a. ministerial act. We may refer, by way of illustrating these principles, to the two decisions of Urquhart v. Ogdensburg (91 N. Y., 67) and Same v. Same (97 id., 238). If the duty is imposed on a public officer of keeping a sidewalk or street in repair, he cannot excuse himself on the ground that, in his judgment, it was best not to repair it. (Wilson v. Mayor, 1 Denio, 595.) He may excuse himself, of course, by showing that he did the best that he could.

The defendants, in the present case, urge that the duty is not put upon them of doing the m.anual work of repairing sidewalks or of keeping the snow off the streets; that they cannot attend to this in person; that, therefore, their only duty was to appoint persons to’ do the manual work; and that for the negligence of these employees they are not liable. (Walsh v. Trustees, etc., 96 N. Y., 428.) This argument might be very appropriate, if the facts of the case had been proved on a trial, and if plaintiff had failed to show that the defendants had themselves been negligent, and it had appeared that the only negligence was that of their employees. Yery possibly these defendants are not the “legal superiors” of any person employed by them, and are not liable as superiors-for the misconduct of such employees. But that is not to the-point. The demurrer admits that the defendants have been negligent in not keeping the sidewalk in repair and free from snow and ice. The allegation is. such as would be made in an action against a commissioner of highways or similar officer. It is not the duty of a commissioner of highways to do the mcmual work of repairs. Yet it may be shown, by proper proof, that he was negligent in-failing to keep the highway in order, and that he was therefore-liable to one who was injured. So it is not the duty of a corporation, that is, of the legal person to do the manual work of ropairing streets. Yet a complaint alleging the duty and the neglect of a corporation would be proper... If it is the duty of a corporation to repair streets, it is no answer to an allegation of neglect to do this that the duty was not to do the manual work, but only to cause the repairing to be done. (Urquhart v. Ogdensburg, ut supra, second case.)

The defendants again urge that they are not liable for a neglect of their duty, because by the city charter the city is declared not to be liable for any injury causea by a sidewalk being out of repair, or by slipping upon snow or ice thereon. (Sec. 31, title 4, cbap. 95, Laws 1881.) They argue that if the principal is not liable, they, the agents, are not. It is hardly accurate to say that the city and the common council stand merely in the relation of principal and agent. Furthermore, in Robinson v. Chamberlain (ut supra), a canal contractor was held liable for neglect, while it is a familiar doctrine that the' State is not liable. But if we adopt the view that the common council are the agents of the city, still there is no-reason why an agent should not suffer for damages occasioned by his wrongful act, even though his principal be not liable. If a statute should relieve a railroad company from any liability for the wrongful act of its servants, there would be no reason why the servants should not continue liable for their own wrongful’acts. If the doctrine of respondeat superior were abolished, the doctrine that he who does an injury should pay the damages he has caused would be unaffected. Further, in the case of Bennett v. Whitney (94 N. Y., 302), a street commissioner of Binghamton was held liable for negligence, although the charter exempted that city from liability. It would be illogical to say that public officers were relieved from personal responsibility for their negligence, because a statute had exempted the corporate body which appointed them from answering for their misconduct. That action, indeed, was commenced against the mayor and aldermen as well as the street commissioner. A nonsuit was granted as to the mayor and aider-men, no negligence having been shown against them. But the language of the opinion is broad enough to sustain the present action, if, on trial, these defendants should be proved to have been negligent.

The question then remains, have the common council the duty of keeping in repair the streets? This does not mean are they absolutely bound to keep them in repair, but have they any duty in that respect ? If they have any such duty, then it is possible for them to be negligent in its performance. If negligent, then, on the general principle, they are liable for the injury caused by their negligence. (Bennett v. Whitney, ut supra.) The defendants must, argue that they have no ministerial duties whatever in this respect, and that they may utterly neglect all care of the streets. The common council has the power, and is under the duty to exercise the power, of commissioners of highways (tit. 4, sec. 20, sub. 13), and “ to direct the manner and superintend the repairing of sidewalks.” (Sub. 12.) It seems hardly necessary to refer to the statutes respecting the commissioners of highways, to show that they have a duty (limited it may be by their funds) to repair the highways within their jurisdiction. (See, also, Ehrgott v. Mayor, 96 N. Y., 264; Barnes v. Dist. Columbia, 91 U. S., 540.) We cannot hold that this common council have no power and no duty to discharge ■ in respect to keeping the streets in repair. Whether or not the defendants did their whole duty is a matter to be determined on the trial. On this demurrer their negligence is admitted, and in defense'they insist that they had no duty to do. With this view we disagree. (Bennett v. Whitney, ut supra.)

A further argument is that public policy should forbid us to hold the defendants liable, inasmuch as such a rule of liability would drive from the common council persons of responsibility. We cannot give much weight to this argument. The defendants say we ought to be allowed to accept office and knowingly to neglect our duties, without any liability to those whose limbs are broken through our negligence, because no responsible persons will accept office except on the condition that they may neglect its duties with impunity. It is enough to say in reply to this that it is better to have irresponsible officers who attend to their duties than responsible officers who do not. Nor has it yet been found that the principle of liability for official misconduct has deterred worthy men from accepting office. If the sole duty of these defendants was legislative, a different question would arise. If on the trial the only proof of alleged negligence should be some misjudgment in doing legislative work, very probably no liability would be proved. But there certainly is some ministerial, as well as some legislative, duty to be done by these defendants in this respect, or at least there may be such ministerial duty. To keep streets in repair is strictly ministerial, though to establish a grade may be legislative. Now if it be the duty of these defendants to cause the streets to be kept in repair, then for neglecting that duty they are liable.

The judgment should be reversed, the demurrer should be overruled, with costs below and in this court, with leave to defendants iii twenty days and on payment of costs to withdraw their demurrer and to answer over.

Bockes, J., concurred in the conclusion reached in the opinion of Leaened, P. J.