I concur with my brother Laughlin in the reversal of this judgment, but I think that the defendant was entitled to a *843dismissal of the complaint or a direction of a verdict in its favor at the close of the whole testimony. The distinction between the liability of a municipal corporation acting under legislative authority in constructing a public work, and thus exercising governmental powers delegated to it by the State, and that where a municipal corporation, as a private owner of property, is engaged in improving its property or constructing a work for the benefit of the corporation, is clearly recognized in all of the decisions of this State dealing with this subject. Radcliff’s Executors v. Mayor, etc., of Brooklyn (4 N. Y. 195) settled for this State that a municipal corporation thus exercising governmental powers conferred upon it by the State is not liable for consequential damages to abutting property, there being no want of care or skill in the execution of the work and no provision in the charter for the payment of damages of that kind. And since that time this principle has been consistently applied. In Atwater v. Trustees, etc. (124 N. Y. 602, 608), it is said: “The doctrine, however, is well established in this State, that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized by law, are not liable for consequential damages occasioned by it to others unless caused by misconduct, negligence or unskillfulness.” And in Uppington v. City of New York (165 N. Y. 222, 231) it is said: “ Consequential damages, more or less serious, naturally result from making extensive improvements in a public street occupied with dwellings standing upon either side. The city, however, is not liable therefor at common law so long as they are confined to consequences that are the necessary and usual result of the proper exercise of the power to make the improvement. * * * When, however, the city has power to let the work and it enters into contract with competent contractors, doing an independent business, who agree to furnish the necessary materials and labor and make the entire improvement according to specifications prepared in advance, for a lump sum, or its equivalent, they are not the servants or agents of the city, but are independent contractors, and the city is not liable for then* negligence, even when it reserves the right to change, inspect and supervise to the extent necessary *844to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed, and there is no interference therewith by municipal officers, which results in injury.” In making the public improvement in question the city was required by the Legislature to do the work by contract let after public bidding, and the city had no power to have this work done in any other way. As thus required by the Legislature, it advertised for bids for doing the work, proposed a contract, which is not complained of, executed the contract as required by the charter, and the contractor proceeded in the execution of the work. I do not understand that there is any evidence to justify a finding that the contractor unnecessarily obstructed the street or that the city was negligent, or that any of the responsible officers of the city were responsible for any unnecessary obstruction in the street, and the only evidence that I can see upon which any claim of negligence on behalf of the city or its officers can be based is that the municipal authorities did not exercise sufficient diligence in exercising the power under the contract to terminate it when the original contractor failed to complete it according to its terms, and make a new contract for the completion of the work. Now, the original contractor failed to complete, the municipal officers finally terminated the contract, and subsequently made a new contract with new contractors to complete its work. The new contractors subsequently defaulted, and the city again terminated the second contract, and the work was finally completed. Thus, the delay was caused not by any act of the city officials, but by the failure of contractors to complete the work which the city was compelled to have done by contract, and the question whether it would be for the public interest as well as for the interest of the abutting property to terminate a contract and to advertise for new bids, it seems to me, is one that necessarily had to he determined by the municipal authorities, and the determination of that question, where there is no element of fraud or bad faith, would not, I think, impose a liability on the defendant. Although there was a failure to complete in time, it is obviously often to the advantage of both the municipality and the abutting owners that the contractors *845should be allowed to complete the contract, rather than to go to the expense and increased cost of terminating the contract and advertising for new bids. It was certainly not the fault of the city or its responsible officers that these contractors failed in the completion of their contract. And there was no evidence, I think, to justify a finding that the delay in the making of new contracts, or the delay in the completion of the work by the subsequent contractors, was a result of any negligence or omission of duty by the defendant or its officers. The city was constructing sewers in a portion of the city through which streets had been recently opened. I think it is apparent that a large amount of work was being thrown upon the public officials in adopting the new territory so that it would be used as a part of the city, and mere delay in the abrogation of contracts, or the making of new contracts, does not, as I view it, expose the -city to damages for the consequential injuries entailed upon abutting property. For these reasons, therefore, I think that the judgment should be reversed and the complaint dismissed.
Of course, a very different question would be presented if the action was against contractors who had unnecessarily obstructed the street, established a nuisance, or unnecessarily injured abutting property, as in Bates v. Holbrook (171 N. Y. 460).
McLaughlin, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.