#### Catherine Peaty, as Administratrix of Robert C. Peaty, Deceased, Plaintiff, v. The City of New York, Defendant.

(Supreme Court, Kings Trial Term,

December, 1900.)

Municipal corporation — When not liable to an employee for negligence.

A municipal corporation is not liable to the widow and next of kin of a lineman of its fire department who, while upon a pole of its telegraph and fire alarm lines, fell with the pole and was killed because the pole suddenly broke at a point of decay beneath the ground, *232although proper inspection by the municipal corporation would have detected the defect in time to have remedied it and prevented the accident.

A history and review of the decisions in this State on the liability and nonliability of municipal corporations for negligence in governmental matters entrusted to them, and their inconsistency pointed out.

Motion by the plaintiff for a new trial, the complaint having been dismissed at the trial. Action for damages for the benefit of the widow and next of kin for the alleged negligence of the defendant causing the death of the plaintiff’s decedent, who was her husband. The decedent was a member of the fire department of the defendant. He was a lineman, and belonged to the force which had charge of the telegraph and fire alarm lines of the department. Their duty was to erect and care for such lines. While removing an abandoned line from a street with a gang, a pole which the decedent had climbed in order to detach the wires broke off at or below the surface of the ground, and falling killed him. It was decayed below ground.

Albert A. Wray for plaintiff.

R. P. Chittenden for defendant.

Gaynor, J.:

The negligence which is claimed is that the defendant failed to have the poles inspected. Even so, the plaintiff could not recover. It may not be easy in the conflict and variation of decisions in this state to state the legal principle for this; but it is settled by authority. The state cannot be sued without its consent for any negligent act or omission of its officials, or liability created by them. And this rule that sovereignty cannot be sued in its own courts prevented counties and towns in this state from being sued, for they were only subdivisions of the state government. They could be sued in such cases only where it was expressly permitted by statute. In the recent revision of our town and county laws they have been classed as municipal corporations, but this change in name probably implies no other change.

It was the law with us from the beginning, that for any negligence of town officers in the governmental matters of keeping the highways in repair, executing the health laws, and the like, the *233town could not be sued; and a similar rule obtained as to counties. This is the common - law rule as we got it from England. When municipal corporations, *i.*6., cities and villages, began to be organized in this state and take the place of towns in government, the question soon .arose in respect of whether the same rule was to apply to them, or whether they could be sued in such cases; and much of ingenuity, research .and argument was applied to the subject. They were seen to be something more than mere subdivisions of the state government; they were distinct corporate entities. But even as to them there was a general rule of the common law that they were mere agencies of the sovereign power in performing such functions of the general government as were delegated to them, and could not for that reason be sued by individuals for damages caused by their non-feasance or misfeasance therein. It was however finally decided in this state that such actions would lie against them. The ground upon which this was put was that of contract. It was decided that a municipal corporation in accepting from the state a charter which gave to it certain privileges and advantages, and imposed on it the doing of certain public duties, thereby made a contract with the state *to*do such duties, and that for any breach or negligence therein which damaged an individual, such individual could by privity through such contract maintain an action for damages against it therefor. “ The surrender by the government to the municipality of a portion of its sovereign power, if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking on the part of the corporation to perform with fidelity the duties which the charter imposes” ; and such undertaking' *“*enures to the benefit of every individual interested in such performance” (Weet v. The Trustees of the Village of Brockport, 16 N. Y. 161, note). This was held in the case of an individual injured by a defect in a public highway; but the principle if carried out would make a municipal corporation liable in an action for damages to an individual for negligence in respect of all public duties delegated to it. The learned judge who wrote in *Weet*v. *The Trustees*had to put such municipal liability to individuals upon this ground of implied contract, in order to avoid the rule above stated of non-liability to individuals of municipal corporations acting as *the*mere instruments of sovereignty, *i. e.,*of the general government of the state. Another reason why the *234learned judge put it on such ground was that in his opinion he expressly repudiated the proposition that a public officer is liable to individuals in damages for injuries done to them by reason of his failure to perform his public duties, or of his negligence in the performance thereof. That question was then in open dispute in the courts of this state. In *Bartlett*v. *Crozier*(17 Johns. 439) the court for the correction of errors had unanimously reversed a judgment of the Supreme Court declaring such official liability, and held that it did not exist, while twenty-three years later the Supreme Court in *Adsit*v. *Brady*(4 Hill, 630) had again asserted the rule that *“*When an individual sustains an injury by the misfeasance or non-feasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case”. This controversy was not settled until the decisions in *Robinson*v. *Chamberlain*(34 N. Y. 389) and *Hover*v. *Barkhoof*(44 N. Y. 113), which finally declared such official liability. How, as municipal corporations voluntarily accept their charters and undertake to perform the public duties which such charters or other laws impose, the very same as public officers voluntarily accept their offices and take oath to faithfully discharge their duties, it seems quite impossible to perceive any principle on which the former are not to be held liable to individuals for negligence in respect of their public duties while the latter are.

But on whichever ground we place such municipal liability, *i. e.,*whether on the ground of implied contract by the acceptance of their charters, as in *Weet*v. *The Trustees,*or on the ground that municipal corporations are liable to individuals for negligence in respect of the performance or non-performance of their public duties, the same as public officers, as in *Adsit*v. *Brady,*it is plain that either principle fully carried out would make them liable to actions for damages by individuals for negligence in respect of *all*public duties so imposed on them. They could not, consistently, as it would seem, be held so liable in respect of one public duty and not of another. In *Weet*v. *The Trustees*(as also in Conrad v. The Trustees, 16 N. Y. 158, with which it is reported as a note), such liability was declared in respect of neglect of such public duty in the making and repairing of public highways or streets. But after so deciding such general liability of municipal corporations, and making it the same in effect as in the *235case of individuals having public duties to perform by reason of holding public office, the courts did not adhere to the principle thus established. They soon went back to the rule in respect of such corporations, viz., that municipal corporations were not to be held liable to individuals for negligence in respect of duties imposed on them of a “ governmental ” character, in the doing of which they only act as a means or agency of the state in the general scheme of state government; but only in respect of matters not of that category, and permitted to such corporations for their private advantage or emolument. If a municipal corporation engages in the running of street cars, or in the manufacture and sale of gas, or in supplying and selling water to its inhabitants, or in the ownership and management of docks, it is not doing governmental duties in the sense mentioned in such rule, and it would be easy to see the application of such rule to such a case (Bailey v. The Mayor, 3 Hill, 531; Scott v. Mayor of Manchester, 1 H. *&*N. 59; *2*H. *&*N. 204; Cowley v. Mayor of Sunderland, 6 H. & N. 565; Mersey Docks v. Gibbs, L. R. 1 H. L. 93). But how could such rule of liability be applied to a case of neglect to keep a public highway or street in repair? Surely the making and repairing of highways is and always has been a governmental matter. It would seem quite strange to class the making and repairing of highways as a part of the private business of a municipal corporation, or as a power exercised for its own advantage or emolument. Yet the decisions in this state have continued from the time of *Weet*v. *The Trustees*to hold cities and villages liable for damages to private individuals for negligence in the governmental matter of making and repairing public highways, while they hold them not liable for negligence in respect of the governmental matters of executing laws for the extinguishing of fires, the preserving the public health, the administering of the public charities, and the maintaining of the common schools (Maxmilian v. The Mayor, 62 N. Y. 160; Ham v. The Mayor, 70 N. Y. 459; Smith v. City of Rochester, 76 N. Y. 506; Hughes v. County of Monroe, 147 N. Y. 49; Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46). Are these governmental matters, and the making and repairing of highways not a governmental matter?

In Massachusetts there is no such variation of the rule, but it is consistently applied and carried out in all cases, viz., “ that no private action, unless authorized by express statute, can be main*236tained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage ” (Hill v. City of Boston, 122 Mass. 344; Pettingell v. City of Chelsea, 161 Mass. 368).

In this state the exceptions to- the contrary rule laid down in *Weet*v. *The Trustees*have grown to he far greater than the rule itself, though our courts have all the while professed to- revere that decision; and such exceptions embrace the plaintiff’s case.

The motion for a new trial is denied.