Commissioners of emigration were named in the law of 1847, entitled "An act concerning passengers in vessels coming to the city of New York." (Laws of 1847, vol. 1, p. 182.) Section four of that law declares that "the said commissioners shall be known as the commissioners of emigration,' and by that title shall be capable of suing and being sued." The same law provides for the filling of vacancies in the office of commissioners, and for the appointment of new ones by the governor, by and with the advice and consent of the senate.
Under the authority conferred upon the commissioners of emigration by sections six and seven of chapter 474 of the Laws of 1855, they designated Castle Garden as the place for the landing of emigrant passengers in the city of New York, and they hired that garden for such purpose. But it was pursuant to chapter 579 of the Laws of 1857, that they licensed the steam tug, by which the plaintiff and her three chests of baggage were taken from the ship Ontario, which brought her into the harbor of New York.
The owners of the steam tug had the right to take the plaintiff and her baggage from the ship Ontario to Castle Garden; and they incurred a penalty if they did not carry *Page 145 the missing chest to the garden. (Laws of 1857, p. 243, § 5.) For the evidence shows all three of the chests were put on board the tug.
The plaintiff was not able to find one of the chests in Castle Garden, where all three of them should have been delivered by the owners of the tug. The one she did not obtain contained the two hundred and twenty sovereigns and property in question in this action.
The judge charged the jury that the doctrine of respondeatsuperior was applicable to the case, and that the defendants were superiors or principals. Also, that the defendants were liable if the property came into the possession of the agents or employees of the defendants, and was lost by their carelessness and negligence.
The jury must have found that the missing chest was lost or wrongfully detained after the same came into Castle Garden, by the carelessness or negligence of Superintendent Kennedy or some other agent, clerk or servant employed there by the defendants. For there was no ground for imputing personal carelessness or negligence to either of the commissioners of emigration.
Kennedy and the other persons were employed by the defendants in pursuance of section six of the act of 1847, which authorizes them employ such agents, clerks and servants as they shall deem necessary for the purposes specified in that act, and to pay a reasonable compensation for their services, out of moneys received by the chamberlain of their city of New York, from the masters and commanders of ships and vessels bringing emigrants to that city. (Laws of 1847, vol. 1, p. 186.)
The defendants are public officers, and their duties are prescribed by the legislature in the several acts to which I have referred, and by chapter 219 of the Laws of 1848. They were not liable in this case; for they were not guilty of any personal negligence. The only negligence established *Page 146 was that of their agents, clerks or servants. And the general rule is now firmly established that public officers and agents are not responsible for the misfeasances, or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty of the sub-agents or servants, or other persons properly employed by and under them, in the discharge of their official duties. (Story on Agency, § 319.) I need not state the qualifications of this rule; for the defendants were not brought within any of them. They may, however, be seen in Story on Agency, sections 319 a, 319 b, and Story on Bailments, section 463.
The position of the defendants is distinguishable from that of persons acting for their own benefit, or employing others for their own benefit. They do not act for their own benefit, or employ agents, clerks or servants for their own benefit, but for the benefit of the community at large.
The case does not show that the defendants receive any compensation for their services. But if they do, the presumption is that the state or city of New York pays them.
My conclusion is that the judge erred in holding the defendants responsible for the carelessness or negligence of their agents or employees, and that the judgment against them was properly reversed and a new trial ordered by the general term of the court of common pleas; and that the order reversing the judgment should be affirmed, and judgment absolute rendered against the plaintiff with costs, pursuant to the stipulation made by her in her notice of appeal to this court.
All the Judges concurring,
Judgment accordingly. *Page 147