Art. 12. Municipal and Quasi-Municipal Corporations.

He adds that there are three considerations which are of primary importance: First, the character of the corporate body which is sought to be charged (whether it is a quasi corporation or municipal corporation proper a question considered under subd. 1) Second, the nature of the duty from which the tort resulted. Third, the means at the command of the corporation for the performance of that duty. At sections 8 and 10 the same author lays down the rule (citing Smith v. Mayor of New York, 66 N. Y. 295 to the propositions) that at common law no obligation rests on such a corporation to perform its private and corporate duties absolutely and at all times, and that its powers are limited to those expressly conferred by the State or necessarily incident thereto.

In Peaty v. City of New York, 33 Misc. Rep. 231, 67 N. Y. Supp. 276, will be found an opinion of Justice Gaynor, the syllabus of which reads as follows: "A history and review of the decisions in this State on the liability and nonliability of municipal corporations for negligence in governmental matters intrusted to them, and their inconsistency pointed out."

§ 3. A distinction between political and corporate duties of municipality. As to the liability of municipalities in the strict sense of the term, a distinction exists as to their liability for acts in different capacities. In Mayor v. Bailey, 2 Den. 431, Judge Nelson, at p. 539, speaking of the distinction between powers granted exclusively for public purposes, and those granted for private advantage, says that it is "quite clear and well settled, and the process of separation is practicable. To this end regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common advantage therefrom, the corporation quoad hoc is to be regarded as a private company."

In Maxmilian v. Mayor, 62 N. Y. 160, it is said (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

Art. 12. Municipal and Quasi-Municipal Corporations.

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 upon 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 negligent omission or action."

Municipal corporations are bound to see that all duties which are ministerial, and which are absolutely imposed upon them by virtue of their being municipalities, and undertaken by them, are performed with reasonable care and prudence, and are liable to the same extent as an individual would be. Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Storrs v. City of Utica, 17 N. Y. 104; Lloyd v. City of New York, 5 N. Y. 369; Barton v. City of Syracuse, 36 N. Y. 54; Davenport v. Ruckman, 37 N. Y. 568; Requa v. City of Rochester, 45 N. Y. 129; McCarthy v. City of Syracuse, 46 N. Y. 194; Noonan v. City of Albany, 79 N. Y. 470; Saulsbury v. Village of Ithaca, 94 N. Y. 27.

It is the universal rule that municipal corporations, although there is no statute expressly creating liability, are bound to see that all purely ministerial duties undertaken by them are performed with reasonable care and prudence, and are responsible in damages for any failure so to perform them, to the same extent as a business corporation or a private individual would be in like circumstances. Nelson v. Village of Canisteo, 100 N. Y. 89, citing Conrad v. Ithaca, 16 N. Y. 159; Weet v. Brockport, 16 N. Y. 161; Saulsbury v. Ithaca, 94 N. Y. 27, cited in Pettengill v. City of Yonkers, 116 N. Y. 558 (564); Wilson v. City of Troy, 135 N. Y. 96 (102); Seymour v. Village of Salamanca, 137 N. Y. 364 (368).

A municipality can perform its functions only through officers or agencies; it is not responsible for the misconduct or neglect of officers or departments created and invested with powers for public purposes, as distinguished from those for the purposes of the corporation. Bieling v. City of Brooklyn, 120 N. Y. 98

(106).

The distinction between public and private powers of municipal corporations has been the subject of frequent judicial dis

cussion.

Art. 12. Municipal and Quasi-Municipal Corporations.

In Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46 (52), Judge Gray, speaking for the court, says: "When we find that the power conferred has relation to public purposes and is for the public good, it is to be classified as governmental in its nature and it appertains to the corporation in its political character. But when it relates to the accomplishment of private corporate purposes, in which the public is only indirectly concerned, it is private in its nature, and the municipal corporation, in respect to its exercise, is regarded as a legal individual. In the former case, the corporation is exempt from all liability, whether for nonuser or misuser; while in the latter case it may be held to that degree of responsibility which would attach to an ordinary private corporation. Then, the investiture of municipal corporations by the legislature with administrative powers may be of two kinds. It may confer powers and enjoin their performance upon the corporation as a duty; or it may create new powers to be exercised as governmental adjuncts and make their assumption optional with the corporation." Citing Bailey v. The Mayor, 3 Hill, 531; Lloyd v. The Mayor, 5 N. Y. 369; Maxmilian v. The Mayor, 62 N. Y. 160, and Darlington v. The Mayor, 31 N. Y. 164.

In Maxmilian v. Mayor, 62 N. Y. 160, there was stated the broad general doctrine that two kinds of duties are imposed on municipal corporations - the one, governmental and a branch of the general administration of the government of the State; the other, quasi private or corporate; that in the exercise of the latter duties the municipality is liable for the acts of its officers or agents, while in the former it is not. Lefrois v. County of Monroe, 162 N. Y. 563 (566).

§ 4. Liability for acts of officers and agents. A municipality as a superior or employee occupies a somewhat unique position; the question appears to be what was the nature of the duty in the performance of which the negligent agent or officer was engaged at the time of the injury or damage. Was it a public governmental duty imposed by the legislature upon such official when selected by the corporation, or was it a private municipal duty undertaken for the emolument of, and under the full control of, the corporation. It is a universal rule that, if the duty was of the former class, the relation of superior and

Art. 12. Municipal and Quasi-Municipal Corporations.

agent does not exist, and consequently the maxim, respondeat superior, does not apply, but otherwise if the duty falls within. the latter class. Williams, p. 27.

A municipal corporation cannot be held liable for the wrongful or negligent acts of any public officers or their employees, whose duties are prescribed by statute, who are not under the supervision nor subject to the control of the corporation, and whose functions do not inure to the corporate benefit, although they be elected or appointed by the corporation. Parker & Worthington on Public Health and Safety, § 161.

In N. Y. & Brooklyn Saw Mill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580, Chief Judge Church, in the opinion of the court, says (p. 583): "The subject of municipal liability for the nonfeasance or misfeasance of its officers or agents has given rise to extensive litigation, and the distinctions recognized by some of the authorities, and the apparent conflict between others, renders it often difficult to determine in a given case to what class it belongs. There are, however, some general principles to which it may be proper to advert which seem to be established by the authorities:

First. When, by a municipal charter in the distribution of powers and duties among the different municipal officers, duties of a public character are imposed, the officers are regarded as agents of the corporation, and it is liable for their acts or omissions. This has been held to be based upon an implied agreement, upon the consideration of the grant of franchises, and which agreement inures to the benefit of every individual interested in its performance. (Conrad v. Trustees, etc., 16 N. Y. 158, and note.)

Second. 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. (Appleton v. Water Comrs., 2 Hill, 433.)

Third. When a ministerial duty is expressly imposed upon a municipal corporation by legislative enactment, in the performance of which the public are interested, it may be held liable, although the circumstances are such that an implied acceptance of the particular provisions may not be inferred."

Art. 12. Municipal and Quasi-Municipal Corporations.

It has been repeatedly held that a municipality is not liable for the acts or omissions of an officer in respect to a duty specifically imposed, which is not connected with his duties as agent of the corporation. The general rule is that a municipal corporation is only liable for the omissions or acts of officers in the performance of duties imposed upon the principal. Martin v. Mayor of Brooklyn, 1 Hill, 545; Russell v. Mayor of New York, 2 Den. 461; People v. Supervisors of Chenango County, 11 N. Y. 563; Owens v. Missionary Society of M. E. Church, 14 N. Y. 380. Where an act is ultra vires, so as not to be within the scope of the corporate powers of a municipality, it will not be answerable for the consequences resulting, though the persons causing the work to be done were its officers or agents and assumed to act as such in doing it. Stoddard v. Village of Saratoga Springs, 127 N. Y. 261 (267).

Because the duties of municipal officers are regulated by statute, the municipality of which they are officers is not responsible for their misfeasance or nonfeasance, except in cases where they act as the agents of the municipality in the discharge of duties. imposed by law upon them. People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360 (368), citing Lorillard v. Town of Monroe, 11 N. Y. 392, where it was held that assessors and collectors are not in a legal sense the agents of the town in its corporate capacity, in the assessment and collection of taxes, and the town. is not responsible for any mistake or misfeasance by them in the performance of their duties.

Liability of a municipal corporation for the acts of servants or agents depends on the character of the service. If a corporation appoints or elects and controls them in the discharge of their duties; if it can continue or remove them or hold them responsible for the manner in which they discharge their duties, and if their duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may be regarded as its servants, and the maxim respondeat superior applies. But if they are elected or appointed by the corporation in obedience to a statute, to perform a public service, not local or corporate, but because this mode of employment has been deemed expedient, by the legislature in the distribution of the powers of government, they are not to be regarded as the servants of the corporation, but as public or State officers, with such