[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 166 The simple question is presented in these cases whether the defendants, who have negligently suffered a public street in the city of New-York to be and remain out of repair, are liable for damages sustained by the plaintiffs whilst carefully driving along such street, their carriage being overset, and the bad condition of the road being the sole cause of the injury thereby sustained. It is insisted on the part of the plaintiffs that the defendants are liable, because it is their duty as a public municipal corporation to keep and maintain the streets of the city in proper repair; and secondly, upon the ground that if this should not be deemed a street in the strict sense of the term, within the meaning of the statutes in reference to the city of New-York, yet that as the defendants as a corporation have been from a very early period commissioners of highways in and for that city, whose duty it is to keep and maintain the highways of the city in repair, and have accepted the city *Page 168 charter with all its franchises, the same duty was imposed upon them by the conditions of the charter.
It must, however, be considered as admitted by the pleadings that these injuries were received upon one of the public streets of the city. That this street at the place in question was subject to the control of the defendants as a municipal corporation must be conceded. The setting the curb and gutter stones by the defendants was done in virtue of the power conferred by § 175, 2 R.L., 407, and in their municipal character. The defendants therefore possessed this extraordinary power, and over this street. They owned the fee of the land, and held it in trust for the public as a street, with a franchise in themselves conferred for public purposes, authorizing them to maintain and keep the same in repair, and to defray the expenses thereof by assessments upon the adjacent owners or occupants, or upon the lots themselves. It was that this might and should be done that these powers were conferred upon the defendants. It requires no argument to prove that it is the duty of the defendants to see that the public streets of this densely crowded city are kept in repair; for where a public body is clothed by statute with power to do an act which concerns the public interests, the execution of the power may be insisted on as a duty, though the statute conferring it be only permissive in terms. (The Mayor, c., of the city of New-York v. Furze, 3Hill, 612.) It was held in this case that the corporation of the city of New-York were bound to repair the sewers, basins and culverts in the streets, constructed for carrying off the water, and that if an inhabitant be injured by reason of their neglect in this respect he may have his action against them for his damages. I am not able to distinguish that case from those under consideration. The liability in both cases rests upon one of the plainest principles of law. It is based upon the defendants' negligence in not performing a plain and absolute duty, in consequence of which the plaintiffs have received this injury. *Page 169 The case of Furze was decided more than ten years ago, and has ever since been regarded as the settled law in regard both to the defendants' duty and liability in reference to the public streets of that city. The case of Adsit and others v. Brady (4Hill, 630) is the same in principle. It is declared in that case that when an individual sustains an injury by the misfeasance or nonfeasance 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. It was held in that case that a superintendent of repairs rendered himself liable to persons sustaining damage in consequence of a sunken boat, obstructing the navigation of the canal, being suffered to remain there by the superintendent; that the statute made the duty of the superintendent to keep his section of the canal in proper repair, and that for neglect to perform that duty the law rendered him liable to an action in behalf of an aggrieved party. The duties of this corporation in regard to keeping the streets and sewers of the city in repair are both prescribed in the same section. (Laws of 1813, 407, § 175.) Although its language is that of permission and not of command, yet in its nature it is plainly imperative. (3 Hill, 612; 1 Denio, 601.) In the latter case the court say it is equivalent to an express enactment that it shall be the duty of the mayor, aldermen, c., to make all needful sewers, c. They add that, admitting that there is a discretion confided to them in regard to constructing drains and sewers in the first instance, yet when they have constructed them, the duty is imperative to keep them in repair. This court has recognized the liability of municipal corporations in such cases, in The Rochester White Lead Co. v. The city ofRochester (3 Comst., 464), in which it is affirmed that where a duty purely ministerial is violated or negligently performed by a municipal corporation, the party aggrieved may have redress by action; and the defendants in that case were held liable for negligence in the construction of a culvert. There can be no *Page 170 difference in their liability for negligence in constructing it and for negligence in not keeping it in repair. The liability in both cases rests upon the omission to perform a plain duty.
It would be a waste of time to examine all the cases referred to by the court below and the counsel upon the argument. Many of them have little to do with the question. There is a class of cases in which both public officers and public bodies have been held not to be liable for an omission to keep highways in repair. They are cases however where the powers have been so limited to accomplish the object that the courts have considered their duty resting in too much doubt to render them liable, or that the duty was not imposed at all, by an omission to give them the means necessary to accomplish the object. The cases under consideration are free from any such difficulty. The defendants, as we have shown, are possessed of the most complete powers in this respect.
I am clearly of the opinion that the judgment of the court below is right and should be affirmed.
TAGGART, J., dissented from the foregoing conclusions.
All the other judges concurring,
Judgment affirmed.