Art. 12. Municipal and Quasi-Municipal Corporations.

powers and duties as the statute confers upon them, and the doctrine of respondeat superior does not apply. Woodhull v. The Mayor, 150 N. Y. 450 (454).

Upon the question of liability of municipal corporation for acts of its officers or employees, Judge Folger, in Maxmilian v. Mayor, 62 N. Y. 160, says, the practical question is, "Are the acts that are to be done by the officers in question, acts to be done by them in their capacity of public officers in the discharge of duties imposed upon them by the legislature for the public benefit; or are they acts done for the defendant, in what may be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit or advantage as a corporation, though inuring ultimately to the benefit of the public?"

To entitled one to recover against a city for a wrong it must be shown that the acts of the officer doing it were authorized by the corporation, or had been subsequently ratified by it in such a manner as to make it liable therefor ab initio. Everson v. City of Syracuse, 100 N. Y. 577 (582), holding that the city was not liable for the tortious act of an officer in the collection of a tax.

§ 5. Not responsible for acts involving discretion.- Legislative and judicial duties include all those duties of a municipal corporation that involve deliberation, judgment, and discretion in their exercise, whether its purpose is the accomplishment of purposes public and governmental, and private and municipal, and as to such duties the corporation is not bound in the first instance to act at all, nor is it, if it proceeds to act, liable for negligence in their performance. Williams, p. 12.

In Wilson v. Mayor of New York, 1 Den. 595, Mr. Justice Beardsley says (p. 599), in holding that the city of New York was not liable to actions for injuries done in the exercise of its authority to direct the grading of streets: That it is not the duty of the corporation to make every sewer and drain which may be desired by individuals, or which a jury might even find to be necessary and proper; that no imperative duty rests upon them to open any new drain whatever; that they have discretion on the subject and must necessarily decide when and where such works shall be made.

The selection of proper means and the adoption of plans by which judicial and discretionary powers are to be executed by a

Art. 12. Municipal and Quasi-Municipal Corporations.

municipal corporation involve the employment of deliberation and discretion, and the honest and faithful exercise of these attributes is not subject to review by the courts of law in a private action, brought by one alleging the injury to have been caused thereby. Tiedman on Municipal Corporations, § 328, citing Lynch v. Mayor of New York, 76 N. Y. 60; Monk v. New Utrecht, 104 N. Y. 552. In the latter case it is said, in the opinion of Ruger, Ch. J. (p. 561), in considering the construction of the roadway, that "All questions as to the feasibility and safety of the road selected, and of the security of the plan of structure to be adopted, were devolved by statute upon the commissioners charged with the work of making said plans, and the duty of determining these questions was fairly judicial in its nature upon the body authorized to perform it."

In Lynch v. Mayor, 76 N. Y. 60, it is held that a municipal corporation may exercise its discretion subject to no review or question in any court, whether at any particular place it will build a sewer, and what water it will conduct into an existing sewer, and what drains it will connect therewith.

As to the exercise of judicial or discretionary power in the making of improvements, in Seifert v. City of Brooklyn, 101 N. Y. 136, Chief Judge Ruger says (at p. 143): "The exercise of a judicial or discretionary power, by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which from its nature is liable to be repeated and continuous, but is remediable by a change of plan, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper."

All that is required of a municipal corporation in building a sewer is that it shall adopt a plan of construction reasonably calculated to meet the needs of the present and of the future so far as they can be reasonably anticipated. If it performs this duty and thereafter properly maintains the sewer, it is not liable for injuries to property resulting from the overflow of the sewer occasioned by rain storms of extraordinary violence. Sundheimer v. City of New York, 77 App. Div. 53, 79 N. Y. Supp. 278, distinguishing Talcott v. City of New York, 58 N. Y. 514, 69 N. Y, Supp. 360; Seifert v. City of Brooklyn, 101 N. Y. 136.

Art. 12. Municipal and Quasi-Municipal Corporations.

A municipal corporation is not liable to a private action for damages accruing for not providing sufficient sewerage for draining plaintiff's premises. This duty, although not a judicial one, is of a judicial nature, requiring qualities of deliberation and judgment. Mills v. City of Brooklyn, 32 N. Y. 489.

"In the construction and maintenance of a sewer or drainage system, a municipal corporation exercises a part of the governmental powers of the State for the customary local convenience and benefit of all the people; and in the exercise of these discretionary functions the municipality cannot be required to respond in damages to individuals for injury to health, resulting either from omissions to act, or the mode of exercising the power conferred on it for public purposes to be used at discretion for the public good." Hughes v. City of Auburn, 161 N. Y. 96.

"A municipal corporation is not chargeable with such negligence in the selection of a route or the adoption of a plan for a sewer as will render it liable for consequential damages not caused by willful misconduct to the property of an abutting owner, produced by the settling of the ground in front of his premises, due to the work of construction, when the sewer was lawful, was duly authorized by statute, and the route selected was a proper one, and the plan adopted had been in general use for years, was carefully prepared to protect both public and private interests, and was reasonably safe." Uppington v. City of New York, 165 N. Y. 222.

In Paine v. Village of Delhi, 116 N. Y. 224, at p. 228, the language of Miller, J., in Urquhart v. City of Ogdensburgh, 91 N. Y. 67, is cited with approval as follows: "The rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasijudicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained, but when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such a duty an action by the party injured will lie."

Where the duty violated is purely judicial, no action lies for misconduct or delinquency, however gross, even if corrupt motives

Art. 12. Municipal and Quasi-Municipal Corporations.

are charged. The same principle prevails where the party on whom the duty devolves, though not a judge, is clothed with discretionary powers, to be exerted or withheld according to his sense of fitness and propriety. When the power to make certain improvements in a city is discretionary, a private action cannot be maintained against the corporation for an omission to construct a particular improvement. Wilson v. Mayor of New York, 1 Den.

595.

§ 6. Liability for streets and highways. It is said in Williams on Municipal Liability, § 70, that the practical result of the consideration by the courts, as to liability of municipality for defects in highways, may be summed up in the statement that the courts of last resort, in most of the States, have enforced the doctrine that municipal corporations proper are responsible at common law for injuries arising from their neglect to keep the streets reasonably safe for public travel.

The theory on which cities and villages were first held liable for defects in highways is, not merely that they are corporations, but that they obtain valuable franchises, and in consideration therefor undertake to perform with fidelity their charter obligation. Although this may be fiction, the principle is too well settled in the law to be ignored. This principle is not applicable to counties, which, while the statute may make them municipal corporations, they are something more than that they are political divisions of the State; and while the State doubtless can impose upon counties liability for neglect to perform local duties, it is necessary that there should be positive legislation to accomplish that purpose. Albrecht v. County of Queens, 84 Hun, 399, 32 N. Y. Supp. 473; People ex rel. Martin v. Westchester County, 57 App. Div. 135, 67 N. Y. Supp. 91; Godfrey v. County of Queens, 89 Hun, 18, 34 N. Y. Supp. 1052.

A municipal corporation having the power of maintaining and controlling all streets is bound to exercise ordinary and reasonable care and diligence, and see that they are kept reasonably safe. Nelson v. Village of Canisteo, 100 N. Y. 89 (93).

A city in the ordinary and usual care of its streets, both as to repairs and cleanliness, acts in the discharge of the special power granted it by the legislature, in the exercise of which it is a legal individual, as distinguished from its governmental functions

g

Art. 12. Municipal and Quasi-Municipal Corporations.

when it acts as a sovereign. So held in an action brought to recover damages for the death of a child, who was run over and killed by a horse attached to an ash cart of the street-cleaning department of the city of New York. Missano v. Mayor, 160 N. Y. 123.

The opinion of Bartlett, J., collates and discusses the authorities upon this subject, distinguishing Maxmilian v. The Mayor, 62 N. Y. 160, where it was held that a person struck and run over by an ambulance driven by an employee of public charities and correction could not recover. The latter case was followed, Lefrois v. County of Monroe, 162 N. Y. 563.

In Quill v. The Mayor, 36 App. Div. 476, 55 N. Y. Supp. 889, Justice Cullen also considers the authorities bearing upon this question, holding the same rule as that enunciated in the Missano case, that the removal of ashes and garbage is a private duty of the municipality, and that the city is liable to one who has sustained personal injuries because of the negligence of the driver of the ash and garbage cart belonging to the street-cleaning department.

Tiedman says that the city is bound to repair streets when the failure to do so menaces the safety of public travel. Tiedman, § 342; Weet v. Brockport, 16 N. Y. 161 Davenport v. Ruckman, 37 N. Y. 568.

This duty to repair is comprehensive and includes the removal of obstructions. Goodfellow v. New York, 100 N. Y. 15. Sticks of lumber, logs, and the like. Gorham v. Cooperstown, 59 N. Y. 660. A pile of ashes. Ring v. Cohoes, 77 N. Y. 83.

It is settled by a long line of decisions in this State that municipal corporations proper, having the powers ordinarily conferred upon them respecting streets within their limits, owe to the public the duty to keep them in safe condition for use in the usual mode by travelers, and are liabile in a civil action for special injury resulting from neglect to perform this duty. Ehrgott v. Mayor, etc., of City of New York, 96 N. Y. 271.

The erection of necessary barriers, railings, signs, and lights. Kennedy v. Mayor, 73 N. Y. 365; Hubbell v. Yonkers, 104 N. Y. 434. The removal of ice or snow within a reasonable time after the same has accumulated. Taylor v. Yonkers, 105 N. Y. 202; Kinney v. Troy, 108 N. Y. 567.

The liability of municipality for care of streets arises in almost