The claim of the respondent arises under the provisions of section 1, chapter 321 of the Laws of 1870, which section reads as follows: "Jurisdiction is hereby granted to and conferred upon the canal appraisers to hear and determine all claims against the State of any and all persons and corporations for damages alleged to have been sustained by them from the canals of the State, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals; but no award shall be made unless the facts proved shall make out a case which would create a legal liability against the State were the same established in a court of justice against an individual or corporation. * * *"
By section 13 of chapter 205 of the Laws of 1883, the board of claims have the same authority to determine claims against the State as the canal appraisers formerly had under the act of 1870. Section 1 of the act of 1870, already cited, embraces damages sustained by reason of the improper use and management of the canals, or from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any matter connected with the canals.
Negligence is evidently the foundation upon which the *Page 293 claim must be predicated, and, without such negligence, it is difficult to see how any such claim can be maintained before the board of claims. That such was the intention of the legislature is apparent from the succeeding clause in the section cited, which requires that a case should be established of legal liability against the State the same as against an individual or corporation. Without proof of negligence, no remedy exists against the State under the act cited, and the only relief which can properly be claimed is with the legislature. It would seem to follow that the negligence upon which the claim necessarily arises should be the act of some officer, person or party having the care and management of the canals and exercising a control over the same or some portion thereof.
The damages for which the award in this case was made arose on the night of the 5th of December, 1882, by reason of a break in the canal caused by the paddle-gates at lock No. 65 not being securely fastened so as to prevent the flow of water into the level between lock 65 and lock 64, and also by the gates at lock 64 not being opened so as to allow the water to be discharged without injuring the banks of the canal.
The first question which arises is, whether any negligence is shown on the part of the State for which it is legally liable. The court found, "That the aforesaid break in said canal was the result of the neglect and want of proper care on the part of the lock-tenders in charge of said lock No. 65, and in leaving said lock without any one in charge thereof." The proof upon the trial showed that it was the duty of the lock-tenders to open and close the gates at proper times, and to regulate the height of the water in the adjacent level for the purpose of facilitating the passage of boats. The regulations in regard to the lock-tenders required them to be at the locks alternatively each for twelve hours out of the twenty-four, one coming on at twelve o'clock, noon, and remaining until twelve o'clock, midnight, when he was succeeded by the other lock-tender, there being two at each lock. The lock-tender, Van Keuren, remained at lock 65 on the night in question, until half-past twelve, midnight, that being one-half hour longer than his duty *Page 294 required him to remain, and he then left. The other lock-tender did not appear at all to take his place.
It appears there were no boats on the canal at the time, nor had there been any for three or four days prior; that the canal was all frozen over and covered with ice three inches thick, and that boats could not pass with the canal in that condition. Notice had been given by the superintendent of public works that the canal would be formally closed on the seventh of December, and as there was no duty to be performed by the lock-tenders on the night of the fifth, there would seem to have been no necessity for their being there at that time. The evidence of Van Keuren, who was the only witness sworn as to the manner in which locks were managed, established the fact that while the canal was being operated, the gates were fastened with a ring upright over the lever; that they were left in that way the night he left the lock, fastened in the ordinary way, and it was not possible for the gates to open themselves. The proof was uncontradicted to the effect that the gates were properly secured, and, according to the findings, the paddles, or a portion of them, became open between half-past twelve o'clock and four o'clock in the morning, which caused the injury complained of. The testimony of the lock-tender, Van Keuren, also showed that after the canal was closed for the season, they generally came through and chained the gates down and locked them, not the gates, they usually open in locking boats, but the paddles were locked. It would thus seem that the duty of locking the paddles did not devolve upon the lock-tenders but upon other officers of the canal, and that duty was not to be performed until the final closing of the canal, which had not at that time taken place. The lock-tender had taken all proper precaution to guard against accident, and, having no further duty to perform in passing boats through, there was no necessity of his remaining there any longer, nor of the other lock-tender coming to take his place when he left. It was not, we think, negligence in the lock-tender to leave unlocked the paddles, as it was not a part of his duty to lock them, nor in his leaving the lock at the time he did after having done all in his power to secure the gates. *Page 295
If there was no negligence under the provisions of the statute cited, the respondent is not entitled to damages, but even if there was negligence, we think the State is not liable for the negligent acts of a lock-tender in the employment of a State officer as it is claimed he is by the respondent's counsel. It is a well-settled rule that the State is not liable for the negligence or misfeasance of its agents, unless such liability has been voluntarily assumed by it by legislative enactment. (Lewis v. State, 96 N.Y. 71.) A lock-tender is not an officer of the State having charge of the canals within the meaning of section 1, chapter 321, Laws of 1870, already cited. He has nothing to do with the care, management or control of the canals, and his duty merely is to attend to the locks, to the opening and closing of the same, and the passing of boats through them. He is not a State officer in any respect. He is only a day laborer employed to perform manual or mechanical labor, a mere servant or employe, and is entirely divested of any official powers or functions. He has no more authority than any other laborer on the canal who is hired by the canal officers. He is not named in the statutes of the State or included in the classification of State officers. (R.S., tit. 1 to 5, chap. 5, part 1.) He takes no official oath, gives no official bond, and has no official duties prescribed by law, and it can scarcely be claimed that it was the intention of the legislature to render the State liable for the acts of an ordinary laborer or employe employed by a canal officer. Such a construction would be extending the object of the statute far beyond the plain purpose of the legislature as expressed by its enactment and should not be sanctioned. While the act in question might well apply to State officers upon whom duties were imposed by statute, and many of whom were required to give an official bond for the faithful discharge of such duties, there is no ground for claiming that its policy was intended to include the liability which might be incurred by the wrongful acts of persons who were employed by State officers and especially for acts done in violation of their orders and directions. The distinction between an officer and an employe of the government *Page 296 is well-considered in the opinion in the case of Olmstead v.Mayor, etc. (42 Sup. Ct. 481). (See, also, People v.Conover, 17 N.Y. 67; Sullivan v. Mayor, etc., 53 id. 652.)
The finding of the court here placed the liability of the State on the ground of want of care in the lock-tender, but as he was not a State officer no case is made out within the provisions of the section of the act cited.
The provisions of section 1 of said act in regard to the liability of the State as in the case of an individual or corporation are words of limitation and do not enlarge or restrict the operation and effect of the clauses which precede them. The responsibility here is imposed by legislative enactment and must be restricted within the limits of the same. No claim is made that the canal officers were guilty of any negligence in the employment of incompetent men as lock-tenders.
After a careful examination we are satisfied that no claim was made out against the State under the provisions of the section of the act cited.
The order and award appealed from should be reversed and the proceedings dismissed.
ANDREWS, RAPALLO and FINCH, JJ., concur with RUGER, Ch. J.; EARL and DANFORTH, JJ., concur with MILLER, J.
Award affirmed.