—The charter incorporating “the city of Lockport” provides for an officer named police constable, defines his duties, fixes his salary and time of payment. It is also provided that the common coucil should have power to cause to be raised by tax a sum annually not exceeding $16,000, and that the greater part'of this sum is to be paid to the city treasurer, for the payment of the salaries' of the officers of said corporation, as-in the charter provided, and for the .contingent expenses of the city.
The defendant bases his motion upon the ground that the cause of action contained in the complaint is one of tort, and is founded wholly upon the negligence of the defendant in not keeping its treasurer in funds to discharge this debt.
The position is wholly unsupported by every possible v-iew that can be given the case.
The sum earned by the policeman, is a debt against the defendant in its corporate capacity. By the terms of the charter, the money to be raised for its payment is assessed upon all the taxable property of the city ,• the services to be rendered by this officer are for the common benefit of all the residents and taxpayers. The compensation to the city officers, including policemen, are not made payable out of any particular fund, nor upon any condition or limitation whatever.
*288Municipal, like other incorporations, are liable to suits to enforce the payment of its debts and other liabilities. In cases where the municipal corporation, by its charter, is charged with the duty of deciding upon making local improvements within its corporate limits, and acts as the agent of the party inj ured and the party benefited, in distributing and assessing the costs of the improvements, and fails through the negligence of its officers, to take the necessary steps to levy the assessment, or to collect the tax,' then it is liable in an action of tort, and the negligence of its officers to discharge .an official duty is the' basis of the action. In this class of cases, there is no debt created against the corporation; the labor and improvement is not done for the benefit of the corporation, but in the interest and for the benefit of a part only of the corporators. The following cases are of this character, part of which were cited by the defendant’s counsel: McCulloch agt. The Mayor of B., 23 Wend., 418; Lake agt. The Trustees of the Village of W., 4 Denio, 520 ; Beard agt. The City of Brooklyn, 31 Barb., 142.
The plaintiff’s right of action is founded upon a contract, .and the summons contained the proper notice, that, if the defendant failed to answer he would take judgment for a '.definite sum of money.
The motion is denied, with $10 costs.
The acts of the legislature .relating to the city of Lockport, are chapter 365, laws of 1865, chapter 809, laws of 1868, chapter 835, law;s of 1869.