Art. 12. Municipal and Quasi-Municipal Corporations.

and privileges. Williams on Municipal Liability, §§ 2, 3, and 4; Dillon on Municipal Corporations, §§ 948, 997, 998; Russel v. Men of Devon, 2 T. R. 308; Barnes v. District of Columbia, 91 U. S. 540 (552), citing Conrad v. Ithaca, 16 N. Y. 158; Weet v. Brockport, 16 N. Y. 163; Bailey v. Mayor, 3 Hill, 531; Mayor, etc. v. Bailey, 2 Den. 433.

In Monk v. Town of New Utrecht, 104 N. Y. 552, it is said that there is a manifest difference as to the liability of cities and villages, on the one hand, and towns and counties on the other, arising out of the charter provisions and obvious requirements of the situation as to their obligation.

At common law, a distinction existed between the terms municipal corporation" and "quasi-corporation," the former being applied to incorporated cities and villages, the latter to towns and counties. Hughes v. County of Monroe, 147 N. Y. 49.

In 1892, chapter 685 of the General Laws, being the General Municipal Law (§ 1), provided that the term "municipal corporation as used in that chapter should include "only a county, town, city, and village;" chapter 686 of the same year, the County Law (§ 2), defines a county as a municipal corporation. The Town Law of the same year, chapter 20 of the General Laws, also defines a town as a municipal corporation. It is held, however, that the provisions of the County Law referred to (§§ 2 and 3), declaring a county to be a municipal corporation, and that an action "to recover damages for any injury to any property and right for which it is liable" shall be in the name of the county, import no further liability on the part of the county than that which existed at their enactment. Hence, the distinction remains substantially as above indicated as between liability of towns and counties, on the one hand, and cities and villages, on the other. Markey v. County of Queens, 154 N. Y. 675.

SUBDIVISION 3.

Quasi-Municipal Corporations, Liability of, for Torts.

In the absence of statute expressly creating it, no liability for the nonperformance or negligent performance of the purely public duties which are imposed upon municipal corporations as part of the sovereign power of the State attaches to quasi-municipal corporations. Tiedman, § 325.

Art. 12. Municipal and Quasi-Municipal Corporations.

Quasi-corporations are not liable for negligence or misfeasance in the performance of the duties thrust upon them, unless such liability is expressly created by statute. Williams, § 3. Towns are political divisions of the State organized for the convenient exercise of portions of the powers of the State. Its officers are not its agents so as to bind it by a negligent or improper discharge of their duties. Barber v. Town of New Scotland, 88 Hun, 524, 34 N. Y. Supp. 968, citing Lorillard v. Town of Monroe, 11 N. Y. 392; Ward v. Town of Southfield, 102 N. Y. 287 (295); People ex rel. Van Keuren v. Board of Town Auditors, 74 N. Y. 310 (315); People ex rel. Loomis v. Board of Town Auditors, 74 N. Y. 310; People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397; People ex rel. Morey v. Town Board of Oyster Bay, 175 N. Y. 394. It will be noted that this strict rule of the common law has been changed to a limited extent by statute as to the care of highways. The history of legislation on this subject is briefly traced. 88 Hun, 524, supra.

The limitation of liability of quasi-corporations is considered in Wells v. Town of Salina, 119 N. Y. 280, in connection with their right to contract. It is there held that the powers of towns, and it seems of other municipal corporations organized for governmental purposes, are limited and defined by the statutes under which they exist, and they possess only such powers as are expressly conferred by statute or necessarily implied. Citing authorities in this and other States.

Counties possess quasi-corporate powers, but they are mere trustees of the public rights and powers conferred upon them as the agents of the State. Their corporate capacity is superimposed upon them by the sovereign power. They are auxiliary to the government of the State, and discharge the functions imposed upon them in matters of taxation and local government as representatives of the central and supreme authority. Cayuga County v. State, 153 N. Y. 279, opinion Andrews, Ch. J., p. 289, citing Darlington v. Mayor, 31 N. Y. 164 (196).

A county, while engaged in the discharge of a public duty such as caring for the insane, is a quasi-corporation as to liability for the negligence of its agents in connection therewith. Hughes v. County of Monroe, 147 N. Y. 49, citing numerous authorities at p. 57. In the principal case it is pointed out that this rule does not prevent an action against specific officers committing a wrong

Art. 12. Municipal and Quasi-Municipal Corporations.

ful act as the board of supervisors and officers in control of public buildings.

Counties and towns, being the civil divisions of the State, are not subject to actions, except in so far as the statute law has given them corporate capacity, with the right to sue and be sued, and are not liable in a corporate capacity unless a liability is imposed upon them by statute. Markey v. County of Queens, 154 N. Y. 675 (686).

A county which owns and maintains for public purposes a penitentiary, almshouse, and farm used therewith, acts in a governmental capacity, and is not liable for the acts of the officers controlling them in allowing a nuisance, and an action cannot be maintained against the county therefor. Le Frois v. County of Monroe, 162 N. Y. 563.

The question as to whether a municipal corporation had funds at its command, and more particularly a quasi-municipal corporation, was at one time regarded as of considerable importance. See Hutson v. Mayor, 9 N. Y. 162; Todd v. City of Troy, 61 N. Y. 506; Hunt v. Mayor of New York, 109 N. Y. 134; Monk v. Town of New Utrecht, 104 N. Y. 552. But the tendency of the latter authorities is to hold that even if the necessary funds are not in the treasury, the corporation having the power to raise them by taxation or otherwise is liable. In any event the burden of showing insufficient funds is upon the defendant, and is only available in the case of quasi-corporations. This question rises usually with reference to negligence by towns in failing to repair high

ways.

SUBDIVISION 4.

Municipal Corporations Proper, Liability of, for Torts.

SECTION 1. General rule as to municipal liability.. 2. Specific rule cannot be formulated

PAGE.

119

... 120

3. A distinction between political and corporate du

ties of municipality

121

4. Liability for acts of officers and agents.... 123 5. Not responsible for acts involving discretion... 126 6. Liability for streets and highways.

129

7. Liability for acts of boards or departments.... 131 8. Liability for acts of assessors and collectors of

taxes

133

Art. 12. Municipal and Quasi-Municipal Corporations.

.....

PAGE.

136

SECTION 9. Liability for use of municipal property.. 10. Liability for consequential injury to property. 137 11. Liability for property destroyed by mob...... 138 12. Not liable for damages from works of construc

tion

139

1. General rule as to municipal liability. When there is no express or implied statutory municipal liability for tort, and a plain municipal duty has been violated with a consequent damage to some one's person or property, there is no general rule by which it can be decided in every case whether a civil action will lie. Tiedman, § 324, citing 2 Thompson on Negligence, chap. 16.

Judge Dillon says (§ 983) that the American cases, in his opinion, fully support the rule which he lays down (§ 980), as follows: "Where a given duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests and not as a public agency, and is absolute and perfect and not discretionary, or judicial in its nature, and is one owing to the plaintiff or in the performance of which he is specially interested, the corporation is liable in a civil action" for its failure.

Cities and villages, being corporations created by the legislature, may be sued as such, in any of the courts of the State having jurisdiction of the subject-matter. Port Jervis Water Works Co. v. Port Jervis, 151 N. Y. 111, affirming s. c., 71 Hun, 66, 24 N. Y. Supp. 497.

That a municipal corporation may commit an actionable wrong and become liable for a tort is beyond dispute. Speir v. City of Brooklyn, 139 N. Y. 6 (12).

It is necessary in order to establish liability of a municipal corporation for damages, to show that the act complained of was within the scope of the corporate powers. If outside of the powers of the corporation conferred by statute, the corporation is not liable, whether its officers directed the performance of an act, or it was done without any express direction. Smith v. City of Rochester, 76 N. Y. 506.

A municipal corporation does not insure the citizen against damage from works of its construction. Its obligation and duty in such respect is measured by the exercise of reasonable care and vigilance. Liability can only be predicated upon its neglect or misconduct. Jenney v. City of Brooklyn, 120 N. Y. 164 (167),

Art. 12. Municipal and Quasi-Municipal Corporations.

citing McCarthy v. City of Syracuse, 46 N. Y. 194; Smith v. Mayor, etc., 66 N. Y. 295; Ring v. City of Cohoes, 77 N. Y. 83; Hunt v. Mayor, etc., 109 N. Y. 134.

§ 2. Specific rule cannot be formulated. Few questions have given rise to more diversity of judicial opinion or greater conflict in judicial decisions than that of the liability of municipal corporations for the acts of their officers or servants. In every State in this country, as far as we know, that follows the common law, distinction is drawn between the class of cases in which the municipality is held liable for the torts of its agents and those in which it is held exempt. But not only the grounds on which the distinction is placed, but the line of cleavage itself between liability and nonliability differs greatly in different jurisdictions. Which distinction is the sound one, and whether any distinction will logically stand the test of final analysis, has been questioned. Nevertheless, in this State the rule governing the liability or nonliability of a municipal corporation has for the past twenty-five years been settled by an unbroken line of authority, although there have been at times differences of opinion as to the application of the rule.

Judge Dillon states (§ 948) that he finds it impossible to state by way of definition any rule sufficiently exact to be of much practical value which will precisely embrace the torts for which a civil action will, in the absence of a statute declaring the liability, lie against a municipal corporation, citing language of Lloyd v. New York, 5 N. Y. 369 (375): "All that can be done with safety is to determine each case as it arises." He then states that it is clear that such a corporation cannot be held liable for failing to exercise its discretionary powers of a public or legislative character, or for the manner in which in good faith it does exercise those powers, citing Wilson v. New York, 1 Den. 595; Seifert v. Brooklyn, 101 N. Y. 136; Griffin v. Mayor, 9 N. Y. 456; Seaman v. New York, 80 N. Y. 239. Nor for failure to enforce by-laws. Levy v. New York, 1 Sandf. 465, affirmed in 11 N. Y. 396, 9 N. Y. 456 (459).

Williams (1) says the impossibility of framing any general proposition which will include all the torts for which public corporations have been held responsible in a private action at common law appears to be conceded by both judges and text-writers.