I concur.
The present general use of automobiles by city departments attaches additional importance to the legal questions involved in this case. Is the city liable for injuries occasioned by these automobiles, whether from lack of inspection rendering the automobile unsafe or from negligence in operating the machine? I presume it depends on the facts of the particular case, the use to which the car is put, the persons operating it or riding in it. We have recently decided that the owner of an automobile who invites a friend' to ride is bound to use reasonable care in operating the car and is responsible for the negligence of the chauffeur in stich operation. (Lowell v. Williams, 183 App. Div. 701; affd., 228 N. Y. 592.) But municipal corporations are not liable in all cases as in the case of an individual. One well-established principle is that there is no liability when the wrongful act is in the performance of a governmental function as distinguished from acts done for the benefit or profit of the city itself. (Maxmilian v. Mayor, 62 N. Y. 160; Smith v. City of Rochester, 76 id. 506; Bailey v. Mayor, etc., 3 Hill, 531; Hill v. Boston, 122 Mass. 344.) The difficulty arises in distinguishing, corporate duties from those which although performed by city employees are for the benefit of the State or the general public.
The automobile in the case at bar was purchased and paid for by the city of Yonkers for the use of the city engineer, an officer appointed pursuant to the Second Class Cities Law (Consol. Laws, chap. 53 [Laws of 1909, chap. 55], § 97). The city engineer is an official appointed pursuant to the act *660of the Legislature in all of the second class cities in the State. His duties are prescribed in section 98 of the act: “ § 98. Duties of city engineer. It shall be the duty of the city engineer to perform all the ordinary engineering and surveying services in the affairs and business of the city and to supervise, under the general direction of the commissioner of public works, all the work done for the city in which the skill of his profession may be required or useful. He shall, under the direction of the commissioner of public works and the ordinances of the common council, act as the superintendent of public buildings, bridges, docks and wharves. He shall perform such other duties as may be prescribed by the commissioner of public- works or by ordinance of the common council. He shall devote his time exclusively to the service of the city.”
These duties might well include governmental as well as purely corporate work, and the record is not very clear on this subject. If his duties were altogether governmental I doubt if the city would in any case be liable for his failure or the failure of his subordinates to properly inspect the automobile. In his request for the automobile the city engineer says that the “ Bureau [Department of Public Works, Bureau of Engineering — Second Class Cities Law, supra, art. 7] has under supervision some 30 contracts for public work,” and other contracts are contemplated and it is necessary for the city engineer to go over the ground. The powers and duties of the department of public works in a city of the second class include control of highways, public places, parks, docks, bridges, sewers, lighting, baths, recreation piers, city water works and general supervision and control of all work performed under any contract of the city for local or other improvements. (Second Class Cities Law, supra, § 91, as amd. by Laws of 191*2, chap. 189.) The city engineer appointed the chauffeur of the car from the municipal civil service list. Whether the defendant city woul'd be" liable to invitees in any case for injuries caused by this automobile, I think would depend upon the particular work in which it was engaged at the time.
But, as the presiding justice points out, on the day of the accident the car was not engaged in the performance of any municipal work. Whether we consider the deceased assessor *661as in control of the automobile and the chauffeur, or that the city engineer in accompanying him retained control, would seem to make no difference. The work was the assessor’s work, the trip was solely for the convenience of the assessor. He might have walked or ridden in a street car, or hired a hack. He was not acting for the defendant city, he was not selected by the defendant and it could not control his acts. His powers and duties were defined by the Legislature, and, as Judge Earl says in Tone v. Mayor (70 N. Y. 157, 165), they “ were not what might properly be called corporate powers, and they were not to be exercised for the peculiar benefit of the corporation in its local or special interest, but for the public good, in obedience to the mandate of the Legislature.” I agree with the presiding justice that if he saw fit to ride in the automobile of the city engineer he must take it as he finds it, and plaintiff cannot complain that its mechanism was not in safe condition. (Walsh v. F. R. R. Co., 145 N. Y. 301.)
Order reversed and new trial granted, with costs to abide the event.