author: By the Court.—Curtis, J. Monell, Ch. J.

text:
    ROBERT A. ROBERTSON, and others, Plaintiffs, v. THE ATLANTIC MUTUAL INSURANCE COMPANY, Defendant.
    I. insurance marine against loss of .freight by THE PERILS OF THE SEA.
    1. Total loss—although some of the ca/rgo was saved, delivered, and the freight money therefor paid.

      a. Where the vessel, before reaching the port of delivery, but within a short distance of it, becomes a total wreck, and the master is drowned, and the assured, on receipt of the news, has an interview with the president of the assurer, who told him he had better telegraph to the consignee to find out the condition of the vessel, and to take at least a fifty per cent. . average bond; and to advise with one A., whom the president stated to be either the assurer’s or the underwriter’s agent at that port, the president also stating that it would be impossible to get an agent to go there; and thereupon the assured did so telegraph to the consignee, who advised with A., and he directed the vessel to be turned over to him, as the agent of the underwriters; and thereupon the consignor abandoned the vessel to him as such agent, and all subsequent steps in respect to saving cargo, .delivering portions thereof, and receiving the freight thereon, and selling portions thereof and receiving the proceeds of sale, were performed by him, or by his direction. Held,
    1. A total loss of the freight so far as the owners were concerned.

      a. This, although a portion of the cargo was saved and delivered, and the freight thereon, amounting to two thousand six hundred and seventy-six dollars, received, the expense of saving and delivering it amounting to five thousand eight and hundred and fifty-three dollars.
    3. That it was error to direct a verdict for only the difference between the amount insured, to wit: three thousand six hundred dollars, and the freight received, to wit: two thousand six hundred and seventy-six dollars.
    3. That under the circumstances, A. was the agent of defendant, and it was bound by his acts.
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Decided June 1, 1874.
    Exceptions by plaintiffs ordered to be heard at general term.
    The plaintiffs sue to recover for a total loss of the freight of a cargo from. New York to Galveston, in Texas, by the “brig” “Ocean Wave,” valued at three thousand six hundred and twenty-four dollars and forty-two cents, insured by an open policy issued by "the defendant, August 16, 1867, for three thousand six hundred dollars. The vessel stranded in a storm on the island, on which Galveston is situated, on the outside three or four miles from the city, October 2, • 1867. The plaintiffs allege that thereby the freight money became totally lost. By the policy any loss was made payable to the plaintiffs. They were part owners of the vessel, and the other part owners assigned to them their interest in the claim. The answer admitted the stranding of the .vessel; and alleged that all, or nearly all the cargo was forwarded to Galveston,, and the freight thereon earned and paid to the plaintiffs, .or the persons owning or entitled to receive the-same. The answer further claimed that plaintiffs received on account of the freight over three, thousand dollars, which the defendant, by the terms of the policy, was entitled to have credited on account of ' any claim for loss. On the trial, evidence was introduced that the “Ocean Wave” reached the outer-roads of Galveston harbor just before October 2, 1867 ; that she was there caught in a cyclone, and. October 2, 1867, went ashore and became a total wreck, and the-master was drowned. Parts of the cargo were saved. That which was not damaged was delivered to.the consignees, and the rest sold. The freight money on the-cargo delivered amounted to two thousand six hundred, and seventy-six dollars and ninety-six cents. The expense of delivering the portion of. the cargo rescued,, amounted to five xhousand eight hundred and fifty-three dollars and twenty-eight cents. The expense upon the portion of the cargo upon which freight was. collected, exceeded by two thousand dollars and upwards the freight upon it. The news of the disaster-did not reach Hew York until October 15, 1867, when a telegram informed the plaintiffs of the loss of the-vessel. Immediately afterwards, the plaintiff, Bergen, called upon the defendant, saw their president, and. was told by him that “ he had better telegraph to'Mr..Stackpole, to find ont the condition of the vessel, and to advise with Mr. Hunt the underwriters’ agent, or their (the defendant’s) agent, one of the two (M>. Bergen was not certain which), at Galveston, and to take at least a fifty per cent, average bond, and that on account of the yellow fever, it would be impossible to get an agent to go down there. Mr. Bergen did telegraph Mr. Stackpole, who was the consignee of the cargo, and who received the dispatch, took it to Mr. Hunt, and Mr. Hunt told him to turn over the vessel to him, as agent for the underwriters, and he did so. Mr. Hunt had been for several years agent of the underwriters, and caused an average bond to be drawn up which was signed by such of the consignees as received any part of the cargo. On the trial, Mr. Hunt’s clerk testified as follows:
    “A. Mr. Hunt asked Mr. Stackpole to send his receiving clerk to the vessel, and take charge of the vessel, and to employ men and drays and carts to remove the cargo to the city, subject to the orders of B. P. Hunt.

      “ Q. What did he direct Mr. Stackpole to do in the way of paying charges, if anything \

    “A. Mr. Hunt directed Mr. Stackpole to employ drays and carts, and bring it to the city, and to pay these draymen, and to bring the accounts to him, Mr. Hunt.

      u Q. Was any direction given by Mr. Hunt to Mr. Stackpole with reference to the freight upon such portion of the cargo as could be. delivered \

    “A. I believe he told him to collect the freight on the dry cargo, and make out bills against the damaged cargo sent to auction, and send them to the auctioneer.
    “ Q. Do you remember whether any order was given to Mr. Stackpole for the delivery of the cargo %■

    - “ A. I don’t know whether there was a written order; I think, on the signing of the bond, we sent an order to Mr. Stackpole to deliver the cargo to such consignees as signed, on receipt of the order.
    “ Q. Do you remember whether any orders were given to Mr. Stackpole for the delivery of the cargo ?
    “A. I believe there was.
    “ Q. State whether the damaged cargo, so far as it was saved, was sold, and if so, by whom, and if so, who received the proceeds ?
    “A. It was sold by order of Mr. Hunt, by the auctioneers.

      “ Q. Who received the proceeds of such sale ?
    “A. Mr. E. P. Hunt received a portion of them from the auctioneer; the auctioneer failed ; the auctioneer received the money from the purchasers, and before paying it all over to Mr. Hunt, they failed ; Mr. Hunt drew for a portion of the money and received it, and the rest was not received in consequence of their failure; that is as near as I can remember, .it is so long ago.
    “ Q. Do you know whether Mr. Stackpole paid the charges upon such portion of the cargo as was delivered to consignees ?
    “A. I believe he did.
    “ Q. Was there ever subsequently any account between Mr. Hunt and them in respect to the ‘ Ocean Wave ? ’
    “A. Yes, sir; Mr. Stackpole rendered us a separate and detailed account of every wagon and dray that was employed to haul the cargo. The amount was very large ; it cost nearly as much to bring the cargo into Gralveston from the beach as the freight from Hew York to Gralveston.” On his cross-examination he testified that he was present and saw Mr.' Stackpole getting the cargo out and bringing it to the city; that he saw, him have the crew paid off, and saw the vouchers attached to the accounts; that he instructed him how to proceed in the matter; the same as coming from Mr. Hunt, and that he acted for Mr. Hunt.
    The witness Stackpole testified, that he delivered no' cargo except, on the order of Mr. Hunt; that he did nothing in the premises except under Mr. Hunt’s orders and instructions ; and that he abandoned the whole vessel to him; and that he instructed him to take the money and use it in paying expenses from the wreck to Galveston.
    The defendant called no witnesses.
    The plaintiffs’ counsel asked the court to direct the jury to find a verdict for the plaintiffs for the amount of the insurance, with interest upon it. The motion was denied, and the plaintiffs excepted.
    The plaintiffs’ counsel asked the court to leave it as a question to the jury, upon the testimony, whether there had not been a total loss of the freight. The motion was denied, and the plaintiffs excepted.
    The court directed a verdict for the plaintiff's for the difference between two thousand six hundred and seventy-five dollars (the sum earned by carrying forward the freight) and three thousand six hundred dollars, with interest.
    The jury accordingly rendered a verdict for one thousand one hundred and seventy-nine dollars.
    The plaintiffs’ counsel excepted to the direction of the court. The court directed the judgment to be suspended, and the exceptions to be heard at the general term on the 1st instant.

      Man & Parsons, attorneys, and John E. Parsons of counsel, for plaintiffs, urged :—I.
    When Mr. Jones told Mr. Bergen to direct Mr. Stackpole to advise with Mr. Hunt, what he must have intended—what Mr. Bergen could only understand him to intend—was that Mr. Stackpole was to act under the advice, that is, should follow the orders and directions of Mr. Hunt. There was no limitation upon the extent to which the advice should reach, and when, therefore, on receiving Mr. Bergen’s dispatch, Mr. Stackpole called upon Mr. Hunt, ahd, under his advice, and his orders and instructions, turned over the whole case to him, Mr. Hunt’s action bound the defendant, and they, by their agent, having accepted the cargo, having collected the proceeds of that sold, and having received to their account the freight on that delivered, must pay the plaintiffs the insurance.
    II. Aside, however, from any question of the agency ' for the defendant, of Mr. Hunt, there was a total loss of the freight insured. The Ocean Wave never terminated her voyage. She was lost previously by the perils insured against. So far as the cargo was actually lost, there was a conceded loss of freight, and to forward the residue of the cargo to its destination, cost more than the freight money. This constituted a total loss of the freight (2 Pars. on Mar. Ins. 68 ; Irving v. Manning, 1 H. of L. Cas. 287; Roux v. Salvador, 1 Bing. (H. C.) 526). A total loss of a subject of insurance, is where, by the perils insured against, it is destroyed, or so injured as to be of trifling or no value to the insured, for the purposes or uses for which it was intended, or where the voyage or adventure for which the insurance is made, is otherwise broken up by the perils insured against (Phill. on Ins. § 1485). An indefinite detention of the vessel, or one for so long a period as to break up the voyage, is held to be a total loss of freight (2 Phill. on Ins. § 1630 ; see also § 1632). Although it is the duty of the master to forward the cargo if possible, the freight thus earned over the expenses to constitute savings (Bradhurst v. Col. Ins. Co., 9 Johns. 17). In the case of cargo, this doctrine has been established by the court of appeals in a recent case, where it was held, that there was a total loss of merchandise, although some portion of the goods might be brought into port in specie ; that where there „ was a total loss of value to the owner, total physical loss was not necessary (Wallerstein v. Columbia Ins. Co., 44 N. Y. 204). With reference to freight, it is laid down, that a total loss of the vessel, or of the voyage, is a total loss of the freight. In such case there may be savings of freight, which, of course, need to be credited against the amount of the insurance (2 Phill. on Ins. § § 1630, 1632, 1647, 1648. See, also, § 1637:—that where, in consequence of damages to the ship, the ship, cargo and freight are' hypothecated for the expense of repairs, to an amount- exceeding the value of ship and freight, this is a total loss of freight. A total loss of cargo is a total loss of freight (2 Phill. on Ins. § § 1642, 1644, 1725 ; see, also, Saltus v. Ocean Ins. Co., 12 Johns. 107; and Benson Chapman, 6 Nan. & G. 792). The defendants relied on the trial upon the case of Ogden y. General Mutual Ins. Co. (2 Duer, 204). In that case the freight was insured with the express provision that the company “ should not be liable for any partial loss whatever.” The vessel was not lost. She returned in distress to Hew York, where she was repaired. The master sent forward the portion of the cargo not jettisoned, by another vessel, at a largely increased freight. The court held he should have retained the cargo until his vessel was repaired, and then himself have earned it to its destination ; and it was because he did not do so, that the court held the defendants were not liable. It must be remembered that total loss in insurance does not mean actual, entire loss. Where a valued policy is issued, it makes a difference to the insured whether the adjustment is to be on the basis of a total loss, with a credit for savings, or of a partial loss,—in the former case the insured having the benefit of the valuation which may exceed the true value of the subject insured. All claimed here is not that there was an entire destruction of the freight, but that the vessel, not having completed her voyage, there was a total loss, with a right on the part of the company "to a credit oí net savings of freight.
    III. The defendant must concede that the plaintiff is entitled to recover more than the amount directed by Judge Barbour. In any aspect of the case, the freight saved was liable for contribution to the general average, and such Contribution would diminish the savings of freight, thus reducing the amount to be credited against the insurance. The vessel having been stranded for the benefit of all the interests, and- having been entirely lost, all the interests sacrificed, including vessel, loss of freight, and damage to cargo, were to be contributed for by the saved interests, which were the cargo saved, and the net freight received, with a deduction, in fact, of one-third from the net freight. In general average, gross freight is contributed for, but only two-thirds of the freight saved contributes (2 Phill. on Ins. § 1367).
    IV. Thus far the argument has proceeded upon no-claim of an abandonment. The circumstances permitted an abandonment, and had there been an abandonment by the insured to the defendant of the freight, there would be no question of their right to the entire insurance; but the arrangement between the plaintiff Bergen and the defendant’s president, followed by the action of Mr. Hunt at Galveston, amounted to an acceptance, and that dispensed with the necessity of an abandonment.

      Clifford A. Hand, attorney, and of counsel for defendant, urged :—I.
    In such a case, of stranding in or near the port of destination, and loss of vessel before unlading, and large expenses incurred in taking cargo from the wreck and delivering it, the question of ■ law is, whether the freight must bear the expenses as freight, instead of the cargo saved bearing them as salvage, {a.) The expenses were all of the nature and character of salvage of cargo for which salvors would have a lien on cargo. It would be absurd to spend so much more than the freight, merely to save the freight. A salvage claim is not joint, but against each portion of property for its own part (See Strafford v. Jarvis, 8 Pet. 4). (b.) If the cargo saved from the wreck at an intermediate port or place had performed but a part of its voyage, and had been reshipped by other vessels, at ordinary rates, to be carried the residue of the voyage, the freight, on such reshi pnaent, would not be of a general average character, but a special charge against freight, and a particular average loss (Mumford v. Com. Ins. Co. 5 Johns. 262 ; Searle v. Scovell, 4 Johns. Ch. 218 ; 9 Johns. 29). This was not such a case (See Bradhurst v. Columbia Ins. Co., 9 Johns. 17; Scheffelin v. New York Ins. Co., Id. 21). (c.) But being an expense to save cargo, the cargo must bear the charge of its separation and safety from the wreck, and of its cartage (some three or four miles) from the wreck to the place of delivery, which, in this instance, was also its place of safety (Heyliger v. New York Firemen’s Ins. Co., 11 Johns. 85; Lewis v. Williams, 1 Hall, 430).
    II. So far as the cargo was responsible for expenses, either upon principles of salvage or general average— the freight being actually collected, and there being no' abandonment of freight—there can be no recovery. The freight was earned and paid. The plaintiffs had the cargo in possession, deliverable only on payment of freight, and average accustomed. They had the lien,, and they alone could collect general average charges paid by them. The underwriters on freight are not responsible for mercantile losses by credits or bad debts, or for failures to collect at the port of destination. They insure the earning of freight, not its collection. Strong v. New York Firemen’s Ins. Co., 11
      Johns. 323; Depau v. Ocean Ins. Co., 5 Cow. 63; Ogden v. General Mutual Ins. Co., 2 Duer, 204; Fiedler v. New York Ins. Co., 6 Duer, 282). (a.) If a vessel be greatly damaged, though a part or the whole be reimbursable in general average, or a cargo be jettisoned and 'entitled-to be reimbursed in part, it is true the whole may, in some cases, be recoverable from an underwriter of such vessel or cargo, leaving the latter to collect of other interests. But this doctrine, resting, mainly upon the effect of an abandonment, has no application to a mere expenditure, the things insured not being lost or sacrificed (See 1 Caines, 215-16, citing Abb. on Shipp. 296; explained, 2 Arnould on Ins. 949, 950, 952; and explained in 7 Johns. 57, 412). (b.) And it has no reference to freight-money earned or paid. Freight may have to bear, in some cases, its own share of expenses, but the underwriter of freight (without abandonment), ready to pay his own share, can not be compelled to collect of others. The vessel-owner had it in his power, and as a duty, to exact from each interest saved its due proportion of the salvage or general average expenses. ■ He was not at liberty to inflict the whole upon one (and that the least) of these interests, (c.) The recommendation of a known person, to advise with, was unimportant. It was made in good faith, and, in fact, after the principal events had occurred, and did not purport to take away either power or responsibility from the ship-owner or agent; nor did he concede any such power or pursue the recommendation. The telegram to take “bond and at least fifty per cent, cash deposit,” could not be construed into an authority to deliver the cargo upon a bond taken by another person and with no cash deposit.
    III. The verdict directed by the court was quite as favorable to the plaintiffs as the proofs would justify, and, not being excepted to by the defendants, it should stand.
   By the Court.—Curtis, J.

The contract on the ■part of the underwriters, was that the ship should not he prevented by the perils of the sea from earning freight money for the owners. - The ship was hopelessly stranded three or four miles from the port of delivery, :a port then infected with yellow fever. The expense ■of delivering the portion of the cargo rescued amounted to more than the freight upon it. The master was lost at the time of the wreck. The owners, on receiving notice, applied to the insurers, and were told that on account of the yellow fever it would be impossible to get an agent to go down there, that they had better telegraph to Mr. Stackpole, the consignee of the cargo, to find out the condition of the vessel, and to advise with Mr. Hunt, the underwriters, or their agent at ■Galveston, and to take at least a fifty per cent, average bond. This was done, and Mr. Hunt directed the vessel to be turned over to him as the agent of the underwriters. The vessel was, as the witness Stack-pole testifies, abandoned to him as such agent, and it appears that all the subsequent steps in respect to saving cargo, and delivering and selling same, and collecting the freight upon the portions delivered, were ■performed by him, or by his direction, acting in such ■capacity.

It is claimed by the defendant, that what was thus said on the part of the defendant was unimportant, and did not purport to take away power or responsibility from the ship owner or agent, and that it was merely the recommendation of a known person to advise with. In passing upon this, the peculiar character of the emergency has to be considered. There was no master surviving whose duty it was to have acted for, and advised the parties interested. Ho agent could be sent there in consequence of the prevailing infection, and when the insurers, under such circumstances, referred the owners to their a;:erU to advise with, it can hardly be deemed that snch a recommendation is unimportant when acted upon as was done in this case, and resulting in the transfer of property and money to their agent, and for their benefit.

It is true, the recommendation does not, upon its face, purport to take away power or responsibility from the shipowners, but the construction of it is to be measured by the interpretation, the parties to the suit, the underwriters, and the owners put upon it, and how far they respectively acted upon it and were benefited by it, and to what extent it was adopted and ratified at the time and in the emergency, rather than by what technically was expressed by it.

The defendants, when applied to by the plaintiffs, could have remained silent, they were under no obligation to point out any course to be pursued, but when they chose to tell them to advise with their agent, it is reasonable to suppose that they intended that the plaintiffs should take his advice. When the plaintiffs, acting upon that advice turned over the whole case to the defendants’ agent, and the defendants thereupon, through their agent, accepted the cargo, and collected the proceeds of that sold, and received to their account the freight on that delivered, it would seem that unless there was some good reason to the contrary, that they should pay the plaintiffs the insurance.

The defendants urge that as to the freight that was. earned and paid, the contract of the insurers, that the-ship should not be prevented by the perils pf the sea, from earning freight money for the owners, has been performed. In the case of Scottish Marine Ins. Co. v. Turner (4 H. of L. Cas. 312, reported 20 L. & Eq. 24), the owners, after delivering from a damaged ship the cargo (timber) at the port of destination, and collecting, the freight, abandoned the vessel to the insurers, and paid to them the freight. On appeal, the judgment of the Scottish court of sessions was reversed, and it was held that the freight having been earned and received by the owners, the contract of the insurers on freight was performed. The ground upon which the appellate court places this decision is that, the voyage was performed, and the freight money insured actually earned and received by the owners, and that but for their act after such earning and receipt, they might have retained it for their owners, and that the loss of freight, if any, was occasioned by the act of the plaintiffs themselves.

It will be perceived that the present case differs from this, in the important features, that the voyage was never completed, and that the freight was never actually collected or received by the owners, but on the contrary, was collected and received by the insurers through their agent. If these facts had appeared in the case referred to, it would seem from the opinion of the chancellor (Lord Craneworth), and also that of Lord Truro, that they would have held the insurers liable.

I am led to the conclusion, that the perils of the sea insured against, prevented the vessel from earning freight for her owners, and that the receiving and taking possession of a part of the cargo and delivering it, and collecting the freight by the insurers through their agent, can in no way prejudice the right of the owners to recover for their' loss. The courts seek to apply the most liberal construction to contracts of marine insurance. All narrow technicalities are sought to be avoided as various nationalities and languages are frequently invoked in their construction, and it would ill accord with such a policy to hold that the uncontradicted statement on the part of the defendant to the plaintiffs, after the loss of the vessel, and their subsequent action through their agent, wás unimportant and irrelevant. It is difficult not to see, that it led to the transfer of property and moneys to their benefit, by the plaintiffs relying upon it. The plaintiffs having acted in good faith, should not be prejudiced by the steps they took in consequence of it.

There are no cases that fully sustain the ground taken by the defendants. The case cited of Ogden v. General Mutual Ins. Co. (2 Duer, 204), differs from this, because the vessel was not lost, and the freight was insured, with the provision that the company “ should not be liable for any partial loss whatever.’’

The evidence shows that there was a total loss of the freight, as far as the owners were concerned, and under the circumstances disclosed, there should have been a verdict directed for the plaintiff for the amount of the insurance, with interest, instead of for the lesser sum for which a verdict was directed.

The exception of the plaintiff to the direction of the verdict for this lesser sum by the court should be sustained, and the verdict set aside, and a new trial ordered, with costs to plaintiffs, to abide the event.

Spier, J., concurred.

Monell, Ch. J.

(concurring).—I concur in sustaining the exceptions in this case, as, under the facts, it was error to limit the recovery to the difference between the amount insured and the sum received for freight.

Immediately upon the happening of the disaster, the insurers were notified; and what took place on that occasion, and subsequently, amounted to an abandonment of the freight money to the underwriters, and was, therefore, a constructive total loss (2 Arnould, 1136, § 396).

The relation of agent for the defendant by Hunt, and, indeed, pro hac vice, by Stackpole & Co., was prima facie, sufficiently established by the evidence ; and assuming, therefore, as the court should have assumed, that all they did in respect to the ship- and cargo was done under the abandonment and for the benefit of the underwriters, the plaintiffs were entitled to recover as for a total loss.

It is a general rule, that if freight, though ulti mately earned after a valid notice of abandonment, is yet earned under such circumstances that it is of no benefit to the owner, because of the expense of earning it exceeding its loss, this will not divest his right to recover as for a total loss (2 Arnould, 1139 ; Benson v. Chapman, 6 Mann & Gr. 792; Willard v. Millers Manuf. Ins. Co. 24 Mo. 561).

That would be this case if the assured had actually received the subsequently-earned freight money; for it appears that the expense of rescuing the portion of the cargo which earned the freight was much greater than the freight received. And in that case, under the rule stated, the assured could recover as for a total loss.

But I think that if the proof of abandonment was sufficient—and it was, as I have said, prima facie— then whatever was done towards or in rescuing the cargo and earning the freight was for the benefit of the underwriters. For the effect, of abandonment is to transfer to the insurers the whole interest of the assured in the subject insured, In this case it transferred the freight money, and any amount that -was afterwards derived from that source was salvage to the underwriters.

As practically nothing was received—the whole amount having been absorbed by the expenses—no deduction, under either aspect, should have been allowed.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN C. HAM, Plaintiff, v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant.
    I. CORPORATION.—MUNICIPAL.
    1. Misfeasance of its officebs, when not liable fob.

      a. When the misfeasance is in respect to a duty specifically imposed by statute on the officer.

      b. When the misfeasance is by officers over whom they hare no control, and whose duties are to be performed as the representatives and for the purposes of the state government.

    H. DEPARTMENT OF PUBLIC INSTRUCTION IN THE CITY OF NEW YORK.
    1. Corporation of the city of New York not liable for the misfeasance ■ of the commissioners of said department.

    1. Such department is not in fact a part of the integral government of the municipal corporation; and the duties of the commissioners are specifically imposed by statute on them, and are to be performed by them as the representatives of and for the purposes of the state government.
    1. This, although the statute declares in respect of such department that “there shall be in the government of the city of New York an additional department, to be called the department of public instruction” {Laws of 1871, vol. 3, p. 1344), and, although the mayor of said city, pursuant to said act, appointed the commissioners.
    3. The legislature has nowhere, in any form, expressed or intimated any intention to make the Mayor, &c., liable for the negligence or omissions of such department.

      a. Semble. The legislature would have no power to impose such a liability.
    HI. Application of above pbinciples.
    The former board of education 'became Qthe lessees of a certain second floor, and caused a large number of water-closets and other water arrangements to be put therein. Upon the organization of the department of public instruction, the commissioners thereof took under its charge the said second floor, and continued its occupancy. Thereafter, through the imperfect, insufficient and defective construction of the water arrangements, water flowed from time to time therefrom into and upon the floor below, occupied by the plaintiff, causing the injury complained of.

      Held,
    That the mayor, aldermen and commonalty was not liable, neither by reason of original defectiveness in construction, nor by reason of a negligent maintenance.

    Before Mohell, Ch. J., Curtis and Speir, JJ.

      Decided June 1, 1874.
    Exceptions ordered to be heard at general term.
    The action was to recover damages for injury to plaintiff’s property by a flow of water.
    One Henry Mason was the owner of certain premises on the corner of Fourth-street and Lafayette-place. He leased the first floor and basement of said building to the plaintiff, for a term of five years, from May 1, 1869.
    By an act of the legislature (Laws 1854, ch. 101, § 2, Sub. 11), a body was incorporated, known and designated in the act, as the board of education. It was given all the powers and privileges of a corporation, and was authorized to take and hold real and personal estate and property.
    Such board, in October, 1870, took a lease from said Mason of the second floor of said building, for a term of two years from the ensuing 1st of May, for the use of the NT or mal College; and at its own expense, and by its direction', caused a large number of water-closets and other water arrangements, to be put into the premises, from which the water from time to time flowed into and upon the- first floor occupied by the plaintiff, oausing the injury complained of.
    By another act of the legislature (Laws 1871, ch. 574), which is entitled “An act to amend an act entitled ‘An act to reorganize the local government of the city of New York, passed April 17, 1871,’ ” &c., the said board of education was abolished. The

      seventh section of the last-mentioned act is as follows ;—“There shall be in the government of the city •of Hew York an additional department, to be called the department of public instruction, which shall • under that name have the same powers and discharge the same duties, which are now vested in the board of 'education in said city, when such department shall be duly organized under this section.”
    By the 2nd subd., the officers composing the board of education are legislated out of office, and commissioners of the department of public instruction aré to be appointed by the mayor, who “shall possess and succeed to all the duties of commissioners of common schools of said city, and shall constitute á board, and as such board be at the head of the said department of public instruction for said city.”
    And it is enacted 'that “whenever, in any laws the words board of education or commissioners of common schools shall occur, said words shall be taken to mean and comprehend respectively the department of public instruction and commissioners of said department as herein provided for.”
    Upon the organization of this new department, it took under its charge the public schools, including the one in question, and continued the occupancy "of the premises leased to the board of education.
    There was evidence to show that the plumbing for the water-closets, &c., had been imperfectly done, and had continued ■ insufficient when the department of public instruction took possession, and down to the time of the injury to the plaintiff’s property.
    There was no evidence of any negligence in the use of the water apparatus. The floor leased to the board, of education was occupied and used as a female school^ consisting of a large number of children of various ages, and the closets, &c., were put in for the use .of, and were used by such persons.

      The action was commenced against Henry Mason, the department of public instruction of the city of Hew -York, and the mayor, alderman and commonalty of the city of Hew York. It was discontinued as to the department of public instruction ; and at the close of the plaintiff’s case at the trial, the complaint was dismissed as to Henry Mason, and thereafter the trial proceeded as against defendants, the mayor, &c., alone.
    The court charged the jury, that the defendants, the mayor, alderman and commonalty of the city of Hew York, were liable for damage done to the plaintiff’s property “resulting from negligence of the employees of the board of public instruction.” To this the defendants excepted.
    The defendants’ counsel made the following several requests to the court to charge the jury:—
    1. In cases of this description the defendants are not bound to exercise more than ordinary care and caution, and unless a direct omission of such care and caution be affirmatively proved to have been the cause of damage in this case, the plaintiff can not recover.
    2. The mere fact of the occurrence of the accident, owing to a defect in the apparatus is not enough to charge the defendants, the mayor, &c. The knowledge" of such defect in such a manner and at such a time as to enable the defendants to prevent or stop the overflow of water must be brought home to them, and some distinct act of negligence causing such overflow must be proved.
    3. If the water-works were so constructed that an
    overflow could not be caused except by negligence of some person who failed to use it carefully, the defendants would not be liable, unless the negligence is shown to have been by some agent or servant of the defendants. :
    4. The defendants are not liable for the defective

      construction -of the water works, as they did not erect them.
    5. The plaintiff is bound to establish his damages .affirmatively in. such a manner that the jury can ascertain and fix their amount.
    ,, 6; There is no presumption of negligence on the
    part of the defendants, but the burden of proving the .negligence is on the plaintiff.
    The judge, after he had charged the jury, refused to charge as requested, except so far as he had already charged them on the subject of the requests, to-which refusal the defendants duly excepted.
    The jury gave the- plaintiff a verdict.
    The court suspended judgment, and directed the . exceptions to be heard in the first instance at general term.

      A. B. Millard, attorney, and A. B. Byett, of counsel for plaintiff, in reference to the points decided, urged :—I.
    The judge properly denied the motion for nonsuit as to the appellants.. As to the first ground of nonsuit: .1. The board of education was created by chapter 101 of Laws of 1854, a corporation capable of suing and being sued (§ 2, subd. 11, Const. art. VIII. § 3; Laws of 1869, ch. 437; 17 Abb. Pr. 201, 211; Angell & Ames on Corp. 9 ed. § § 309, 659). It was entirely independent of the appellants. It had sole charge of all public schools, and power to select sites and lease school-houses, and to fit them up and keep them in repair, &c. (§ 2, subds. 1, 4, 8, 9), and it was its duty to do so. Every power entrusted to a public officer' to do an act for the benefit of the public, carries with it a duty to do it, and to do it properly. This is elementary, 'and it was its duty expressly to visit and examine the schools (§ 2, subd. 6). In October, 1870, the board of education leased the normal school premises, in question for two years from May 1, 1871, from Henry Mason. This covered the period during which the injury complained of occurred. The title to the premises was in the appellants (§ 3, subd. 9). By the laws of 1870, passed April 5, 1870, § 30, the several departments of the city government are created, and ' by chap. 574 of laws of 1871, passed April 18, 1871, £ 3, the above section 30 is amended by adding at the end thereof “Department of Public Instruction,” and by § 7 of same chapter (574 of Laws of 1871), page 1344, “Article Fifteen,” the department of public instruction “ shall under that designation have the same powers and discharge the same duties which are now vested in the board of education,” and by subd. 3, the officers composing the board of education are legislated out of office and commissioners of the department of public instruction are to be appointed by the mayor, who “shall possess and succeed to all the power and perform and succeed to all the duties of commissioner's of common schools of said city, and shall constitnte-a board,- and as such board be at the head of the said department of public.instruction for said city.” And it is enacted that “whenever in any laws the words * board of education or commissioners of common schools’ shall occur, said words shall be taken to mean and comprehend respectively the ‘ department of public instruction,’ and commissioners of said department as herein provided for.” We must, therefore, read chap. 101 of laws of 1854, quoted supra, by substituting the department of public instruction, and hence the appellants for the board of education. The department of public instruction being thus an integral part of the corporation, can neither sue nor be sued (17 Abb. Pr. 201 ; 10 Seld. 360). Consequently, the faults, negligences, offenses and official acts of the board of public instruction are those of the appellants, and# uoad hoc, wherever in the above quoted portions of chap. 574 of laws of 1874, the words “ departen--nt of public instruction ” occur, they are synonymous with the- appellants. Indeed, if the appellants are not liable, the plaintiff is absolutely .without remedy. Yet, 'ubi jus, ibi remedia, is a favorite maxim of the law. The judge expressly limited the liability of the appellants to the damages occurring after the passage of this act of 1871. Can any one doubt that the board of education, while a. corporation, was liable for the injury, complained of, which occurred prior to the passage of this act of 1871 \ And that liability arose out of the powers and duties conferred and imposed upon it, as already stated. The powers and duties conferred and imposed on the appellants are expressly declared to be “ the same.” It is a logical necessity that all consequent responsibility and liability must also be “the ■eame.”

      B. Delajield Smith, corporation counsel, and A. ./. Vanderpoel, of counsel for defendant, in respect of the points decided, urged :—I.
    The department of public instruction was not the agent or servant of this defend: ‘ ant, and the court erred in charging the jury that this defendant was “ responsible for such damages as, between the middle of April, 1871, and April 1, 1873, were occasioned by the negligence of the people employed by this department of public instruction in the •second story of the building.” Also, the defendant was entitled to a dismissal of the complaint for this 'same reason. As airead}7 appears, the board of education leased these premises, and occupied them for school purposes, under the provision of chap. 101, laws of 1854, § 2. By § 7 of chap. 574 of laws of 1871, passed April 18, 1871, it was enacted as follows: “ There shall be in the government of the city of New York an additional depariment to be called the department of public instruction, which shall, under that •designation, have the same powers and discharge the same duties which are now vested in the board of-education.” Said act also provides that the terms of office of the commissioners of common schools shall cease, and that the mayor shall appoint twelve commis-" sioners of said department of public instruction, who shall succeed to all the powers and perform and succeed to all the duties of commissioners of common schools,: and shall constitute a board, and as such board be at the head of the said department of public instruction-for said city and county, and shall hold their offices-until December 81, 1876, and the board shall be known as the board of public instruction (Laws of 1871, 1244). The law is correctly laid down in 2 Dillon on Corp. § 772. Tested by the rule, which Judge Dillon deduces from the adjudged cases on the subject, the defendants clearly are not liable for the negligence of the department of public instruction. That department is managed and controlled by a board of commissioners created by statute; this defendant neither appoints, elects, nor can it control said board; it can -neither continue nor remove said commissioners, nor can it hold them responsible for the manner in which they discharge their trust; nor do the duties of said board of commissioners relate to the exercise of corporate powers of this defendant, nor are such duties for the peculiar benefit of this defendant. Said commissioners are appointed by the mayor, in obedience to the statute, to perform a public service not peculiarly local or corporate, and are independent of this defendant as to the tenure of their office and the manner of discharging their duties. The care and control of the schools of the city is a duty specifically imposed by-statute on the board of commissioners, and not upon this defendant (2 Laws of 1871, 1244). “ A municipal corporation is not liable for the misfeasance or nonfeasance of one of its officers in respect to a duty specifically imposed by statute on the officer” (Martin
      v. Mayor, 1 Hill, 545; Lorillard v. Town of Monroe, 11 N. Y. 392, 396). Nor are municipal corporations liable for acts of misfeasance of public officers not appointed, by them, although performing certain acts for them under the law for which they are appointed (Bank of Commonwealth v. Mayor, 43 N. Y. 184). Nor liable for the neglect of the board of police commissioners, who are not appointed by or responsible to the corporation (Atwater v. Baltimore, 31 Md. 462). A city is not liable for a personal injury occasioned by the negligence of the members appointed and paid by the city council, of a” fire department established by the city council pursuant to an act of the legislature (Hafford v. City of New Bedford, 82 Mass. [16 Gray] 297). Nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department (Fisher v. Boston, 104 Mass. 87). A town is not liable for an injury sustained by reason of the negligence of a laborer employed by one of its surveyors to aid him in performing the duties of his office (Walcott v. Inhabitants of Swampscott, 83 Mass. [1 Allen] 101). A city is not liable for an assault and battery committed by its police officers, even though it was done in an attempt to enforce an ordinance of the city (Buttrick v. City of Lowell, 83 Mass. [1 Allen] 172).
   By the Court.—Curtis, J.

The defendant, the corporation of New York, claims that it is not liable for the negligence of the department of public instruction, and that the court erred in charging the jury that it was responsible for such damages, as between the middle of April, '1871, and April 1, 1872, were occasioned by the negligence of the persons employed by the department of public instruction.

The board of education whs created and had certain powers conferred on it by acts of the legislature, passed July 3, 1851, June 4, 1853, March 31, 1854, April 15, 1854, April 15, 1863, and April 25, 1864.

The board of education was (among other powers conferred) authorized to establish schools, to take and hold property, both real and personal, devised or transferred to it, for the purposes of public education, in the city of New York, and for the purposes of the legislation, in respect to it; it was enacted that the board should “possess the powers and privileges of a "corporation” (Gildersleeve v. The Board of Education, 17 Abb. Pr. 201).

The board of education was the instrument of the state government, in administering its system of common schools as far as related to the city of New York. It reported to the state superintendent of public instruction, and the amount of public moneys apportioned by the state to the county of New York among other counties, for the support and encouragement of common schools, was applied to its expenditures.

To these powers, duties and privileges of the board of education the department of public instruction succeeded. The statute making the change of name, and of the mode of the appointment of the commissioners enacts, that “there shall be in the government of the city of New York an additional department, to be called the department of public instruction” (Session Laws of 1871, vol. 2. p. 1244). Though this declaration is made, it must be seen whether the act makes the department in fact a part of the integral government of the municipal corporation as it purports. The defendant justly insists, that in reality this department is managed and controlled by a board of commissioners created by statute; that this defendant neither appoints, elects, nor can it control such board ; that it can neither continue nor remove such commissioner, nor can it hold them responsible for the manner in which they discharge their trust; nor do the duties of this board of commissioners relate to the exercise of the corporate powers of this defendant, nor are such duties for the peculiar benefit of this defendant, and that such commissioners are appointed by the mayor, simply in obedience to the statute, to perform a public service not peculiarly local or corporate, and are independant of this defendant as to the tenure of their office, and the manner of discharging their duties, and that the care and control of the schools of the city is a duty specifically imposed by statute on the board" of commissioners and not upon the defendant.

It is apparent that this department is in effect entirely independent of the city government, and that in its creation, and in the exercise of its powers and duties, it is the instrument of the state government. It would be manifestly unjust to subject a municipal corporation to liability for the negligences of the agents of the state government, in the course of the administration of their public duties, on behalf of the state. Especially would this be the-case where such agents are in every respect independent of the corporation.

In the mayor of Lynn v. Turner, Qowp. 86, Lord Mansfield considers, that a corporation may be bound by prescription or by the conditions and terms of their cn-ation or charter. The courts of this state also have held, that a municipal corporation is liable for misfeasance in respect to a duty imposed absolutely upon the corporation as such ; but they have also held, that the corporation is not liable for the misfeasance of one of its officers, in respect to a duty specifically imposed by statute on the officer (Martin v. Mayor, 1 Hill, 545 ; Lorillard v. Town of Monroe, 11 N. Y. 396; Bank of Commonwealth v. Mayor, 43 N. Y. 189 ; Levy v. Mayor, 1 Sandf. 465).

If the legislature had intended to make the defendant- liable for the negligences or omissions of this department of public instruction, which in itself was vested with the powers of a corporation on behalf of the state, it is to be presumed that they would have in some form expressed it. But no such expression or intimation occurs. Even if they had specifically attempted to impose such a liability upon the defendant, the question arises whether the legislature itself had this power. Yo such power is apparently conferred by the state constitution, and the courts have failed to recognize it. The existence of a liabilty on the part of the city for the misfeasance of officers over whom they have no control, and whose duties are to be performed as the representatives and for the purposes of the state government, would greatly add to the hazards and losses of the tax payers of the corporation.

The learned judge, at the trial, expressed his doubt as to whether his instruction to the jury, that the corporation of Yew York was liable for the negligence of the department of public instruction was correct. In the view here taken of the question there was error in that part of the charge.

The defendant being sustained in the exception that he thus took to the ruling of the court, it becomes unnecessary to consider the remaining exceptions, and there should be a judgment rendered for the defendant.

Speir, J., concurred.

Monell, Ch. J.

(dissenting).—The board of education, created by the act of 1854, was a corporation capable of suing and being sued in respect to its contracts and acts ; and had it remained in existence at the time of the happening of the injury complained of in this case, the action would have been properly against it. But it having ceased to exist before the injury, and no right of action having been reserved, the responsibility must fall upon some other body or persons.

Upon the organization of the department of public-instruction, under the act of 1871, it having been clothed with the powers and duties of the former board, that body, if it was capable of being sued, would have been the proper defendant in the action." It having succeeded to, assumed the contracts, and taken possession of, the property of the former board, could be held for any injury sustained by its fault, or that of its employees or others acting under its authority.

It is not, however, claimed that the department of public instruction is a corporate body; or is capable of being sued, either upon its contracts, express or implied, or for any of its acts ; or that, as a body, it can incur any liability whatever. Although vested with the same powers, and charged with the same duties as the board of education, it is not, as was that board, declared to “ possess the powers and privileges of a corporalion.” And although the powers it possesses, include the taking and holding of property, real and personal, and the making of various contracts in respect' to such property, and for educational purposes, within the scope of the law, yet all these do not . confer corporate powers- upon the department, or render it a corporation de facto or sub modo (Clarrisy v. Met. Fire Dept. 1 Sweeney, 224; S. C. 7 Abb. Pr. [N. S.] 552). In Gardner v. The Board of Health, 4 Sandf. 153, the action was to recover for services performed under the employment of the board; and Ch. J. Oakley said; “We can not find that this board is anywhere created a body corporate by express terms of law, nor can we perceive that it has any of the features of a corporate body. It has no succession, no seal, and no funds. It is organized by the city corporation under the laws of the state.”

But the question is not properly whether the department of public instruction can be sued, but whether the defendant can be held responsible in this case, and that is a question of some difficulty.

To accomplish that result, it must be determined that the municipal corporation is bound for the contracts and acts of the department of public instruction.

The act already referred to, of 1871, is amendatory of an act passed in 1870, to reorganize the local government (and is commonly known as the charter) of the city of New York. That act (Sess. Laws, 1870, ch. 137, § 1), declares and provides, that “the corporation now existing and known by the name of ‘The Mayor, &c., of the city of New York,’ shall continue to be a body politic and corporate.” The act then defines the legislative and executive power! of the corporation; and creates certain co-ordinate city departments, such as finance, police, public works, parks, charities and corrections, buildings, docks, fire, health, &c., and prescribes the mode of appointment, powers and duties of each.

Each department was given power to appoint chiefs of bureaus, clerks, officers, employees ■ and subordinates ; and, under certain specified instructions, to make all contracts in respect to the objects and duties of the departments.

The department of public instruction was not then created; nor did the act abolish the board of education.

. The act was amended in 1871, and provided that there should be “in the government of the city of New York' an additional department, to be called the department of public instruction.”

It is evident, I think, that in enacting the charter of 1870, it was intended to bring back to the city its former powers of local government. Prior to that time the city, to a large extent, was governed by commissions created by the legislature, which were not amenable to any power emanating from the people .over which the commissioners exercised their functions.

The act of 1870 conferred upon the mayor the appointment of all heads of departments. That officer was elected by, and became the representative of a constituency over and fur which the several departments discharged their duties. And provision was, made for removal of officers so appointed, by a local authority designated in the act.

It will be seen, therefore, that the provisions of the-act carry into effect the declared purpose of its title-“to reorganize the local government of the city.” The mayor, proceeding directly from the people, could be held responsible to the people, if, in exercising bis appointing power, he failed in his duty.

The several departments thus became a part of the-local government, and were made the instruments 'for executing the various functions of the corporate body, designated as the mayor, alderman and commonalty of the city.

Although in executing such functions each department, within its sphere, had certain discretionary powers, and could not be controlled by either the-legislative or executive power, they,, nevertheless, acted for and on behalf of the local government, and became its agents in -the discharge of all their duties.. They could contract for. work or supplies, only under-such regulations ■ as should be established by ordinances of the common council;, and were prohibited from incurring any expense, unless an appropriation had previously been made covering it.

: By other provisions (§§ 102, 103) the common council is authorized to enact such necessary ordinances as-may be required for the “fuller organization, perfecting and carrying out of the powers and duties prescribed to any department.” And it is made the duty; of the common council to provide for the accounts,bility of all officers and others entrusted with the receipt or expenditure of moneys.

From these and other provisions of the act of 1870, as well as from its entire scope and purpose, it is evident that it was intended to render the several departments in the city government the • instruments for executing the functions of the corporate body. And, although each department is independent of all other departments, they are all in some measure made subordinate to the corporation irseif. The expenses are defrayed by the city ; and although contracts may be entered into by heads of departments, they, in most cases, must be first authorized by resolution or ordinance of the common council, and in practice it is understood ■ they are always made in the name of the corporation, and not of a department.

The amendatory act of 1871 provides, that section 100 of the act of 1870, shall come under article “Fifteen,” and shall read as follows, &c.

The amendment is thus placed before the sections containing the “general provisions, powers and limitations,” applicable to all the departments, to some of which I have already alluded.

No greater or less force, therefore, can be given to the amendment than it would have had, had it originally been incorporated into the charter of 1870. Nor can it be seen, that the department created by it, holds an attitude, in any respect different, from the remaining departments of the city. None of them are constituted corporate bodies, nor made capable of suing or being sued. They are mere arms of the corporate body, the mayor, &c., acting in behalf and for it; and as such arms, derive their sustenance and support from the parent stock.

. It can not, I think, be seriously questioned, that the heads of the several departments, in the local' government, are corporate officers, and that as such,' for acts within the line of their duties, the political body is liable in an action. They are the agents of the municipality for whose acts the principal is liable.

Hence it follows, that if otherwise the corporation of the city can be held liable, it can not escape on the ground, that as between it and the department of public instruction, the relation of principal and agent does not exist.

The case of Bailey v. Mayor, &c. (3 Hill, 531), supports this view.

The action was for injuries caused by the negligent and unskillful construction of a dam on the Croton river, which had been constructed pursuant to an act of the legislature for supplying the city with water, and had been built by persons employed for the purpose under a contract with water commissioners appointed by the governor. It was held that the commissioners, though appointed by the state, were the agents of the corporation, and that the latter was therefore liable. The court, after combatting the position, that because the commissioners were appointed by the state, and the defendants had no direction or control over their conduct, the defendants could not be held liable, proceed to say, that the defendants are to be regarded as a private company, upon whom special franchises have been conferred for their own private advantage. By accepting the charter, the defendants-adopted the commissioners as. their own agents to carry on the work. The court of errors affirmed the judgment (2 Denio, 433). The chancellor placed his affirmance chiefly, if not wholly,on the ground that the dam was the property of the corporation, and that it was legally bound to see that its corporate property was not used by any one, so as to become noxious to. the occupiers of property on the river below. But several senators followed and adopted the views1 of the ‘court below, that the commissioners were the agents of fthe corporation.

I am aware that the force of that decision is weakened by the comments upon it by Denio, Ch. J., in Darlington v. Mayor, &c. (31 N. Y. 164, 198).

The position, however, of the department of public instruction, towards the city, is different from that which the croton commissioners occupied. The department is a part of the municipal government. Its functions are discharged by persons appointed by such 'government, whereby they become officers of the corporation, and, as such, its agents, within the line of their duties.

; Besides, even if we take the- chancellor’s ground, that the liability attached because the corporation -owned the property, the authority of Bailey v. Mayor, &c. (sup.), will be recognized. The title to all property used by any department of the city government, is in ■the city, and not in the department. So all leases, if not nominally, are in effect to the corporation, and the leasehold interest is the property of the city.

' When the lease in question was taken, the board of education existed ; and being itself a corporation, the lease was properly in its -name. But in creating the department of public -instruction, and conferring upon ft the powers and duties of the former school board, the' legislature, instead of making it a corporation, made it a “ department in the city government,” to assist in discharging one of -its functions. So that, when the board of education was abolished, and the present department established in its place, all property and leases were, ex vi leges, transferred ■ to and became vested, not in such department, but in the corporation of New York, .....

-. Having found, therefore,- that the department- of public instruction is a part of the city government, and not an individual, and independent- corporation, it follows, that the responsibility for the contracts and acts of such department, must rest upon the corporate body.

The question is not embarrased by those cases which hold, that municipal corporations are not liable for the misfeasance or non-feasance of its officers, in respect to duties specifically imposed by statute on siich officers (Martin v. Mayor, 1 Hill, 545 ; Lorillard Town of Monroe, 11 N. Y. 392); nor when the officers are not appointed by them, although performing certain duties for them, under the. law for which they were appointed (Bank of Commonwealth v. Mayor, 43 N. Y. 184).

The liability in this case does not arise from-any misfeasance or non-feasance of the department of public instruction or of any of its officers, but for a neglect on the part of the corporation to reconstruct or repair certain water apparatus, which had previously been imperfectly constructed and put into a building which afterwards came into the possession of the city, and which defective and imperfect water apparatus, was continued to be used by or under the authority of the city.

Such a liability is directly within the case of Bailey v. Mayor, &c. (supra), which, upon the point of responsibility for negligence in the construction, and, therefore, in the continuance, of a dam, by which an injury was caused, has not since been criticised or questioned, and upon which the court of errors was unanimous.

The charge to the jury was, that if the city had succeeded to all. the rights, duties and obligations of the board of education, the original lessees of the premises, and under whose authority and direction the water apparatus had been constructed, that the city could be held for injuries caused by the continued use of such apparatus ; and for the purposes of the trial the jury were charged, that the, corporation had succeeded. to such rights, duties and obligations.

This, as a proposition of law, I am of the opinion is correct.

But it remains to be seen whether upon the facts a liability is shown.

There was, perhaps, a little obscurity on the trial in separating the liability, arising from defects in construction, and such as might arise, from afterwards using or maintaining the defective apparatus. For the former, very clearly, the board of education alone was liable, and. the defendants could not be held. But the theory, fairly deducible from, and supported by the evidence, was, that the defendants, having through its department of public instruction, succeeded to the powers, and being required to discharge the duties of the former board, were responsible for injuries occurring d uring their use or maintenance of the defective apparatus.

Upon the organization of the department of public instruction, it continued in the possession of the premises in question, under the lease to the former board ; and also in the use of the water, water-closets, basins, &c., which had theretofore been put into the building, by such former board; and the learned justice limited the recovery to damages occurring af ter such department so took possession ; and instructed the jury that the defendants were liable therefor, if caused by the negligence of the persons employed by that department.

Upon principle, a person maintaining or continuing the exclusive use of an insufficient or defective apparatus, which had previously been put into a building occupied partly by such person, and partly by other persons, must be held liable for all injury caused by the use of such defective apparatus. Such person may refuse or omit to use the apparatus, and in that case could not be held responsible for injuries resulting from any mere defects of construction. But if he, or ¡those under him, or acting by his authority, does use the apparatus, the law will charge him with maintaining it, and render him liable for the consequences.

In Irvin v. Wood (4 Robt. 138, and see S. C. on second appeal, 5 Robt. 482, and affirmance by court of appeals, 51 N. Y. 224), the action was against the ¡tenant of a building to which a coal slide in the side•walk was an appurtenant, and which was used by .the ¡tenant. It had been constructed by the landlord. .The court held, that as the opening in the street was a public nuisance, the use of it, by the tenant, was the maintaining or continuing of a public nuisance, and the action would lie against him, for an injury caused by 'the opening being there.

It may be said of the case cited, that the tenant was ¡there charged with continuing a public nuisance. But there is no difference in principle between that case and oné where a tenant continues to use a defective or imperfect water fixture, which causes, by. its use, an injury to another. The using is essentially the same, and the liability should also be the same.

It is essential, however, that to create a liability in a person, succeeding to the occupancy of a building containing such defective or insufficient apparatus, that be should do or omit to do some act causing the injury. If he does not maintain or use it, he is not responsible for its defective construction. ' But if he does use it, he is required to ascertain if it is suitable 'and safe, and not liable to inflict injury upon others. Nor is it required that he should have actual notice óf Its insecurity. He is bound to examine and ascertain . if it is safe, and he will use it at his peril, if it is unsafe and insecure. . '

In Irvin v. Wood (supra), the court say (p. 143), that V neither the fact that they had no notice of thé conditio'n of the nuisance, or the fact that they were under no obligation to repair, will relieve them of their liability.”

And this rule, as to notice, applies equally to municipal corporations. In McCarthy v. City of Syracuse (46 N. Y. 194), the action was for injury caused by ¿ defective sewer, and it was held that the city was bound to keep the sewer in good condition, and that no notice was necessary. It was found as a fact that the. defect might have been discovered on inspection, and that the city was negligent in permitting the same to .become out of repair.

This seems to be carrying the duties and obligations of a tenant to a great length. But it is obvious that the security of tenants of other portions of the same premises, requires that the use of insufficient and unsafe apparatus, should not be allowed to cause them an injury, without redress.

The defendants were in possession of the premises, and the water apparatus was used by their authority, and if the plaintiff’s property was damaged by such use, the defendants must be held to be responsible for the injury.

■ And this presents these questions upon the evidence.

Bid the defendants use the apparatus % And was the injury caused by such use? And this involves somewhat the question of the burden of proof.

In cases of injury through the erection or continuance of a public nuisance, the question of negligence does not arise (Irvin v. Wood, supra, and Congreve v. Mason, 18 N. Y. 84). The erection being in itself unlawful, the liability arises from the fact of its being unsafe, and not from a negligent use of it. But that extreme rule can not apply to a lawful erection. In the latter case, not the thing itself, but the use of it, must be the direct cause of the damage. This distinq tion is clearly recognized in Eakin v. Brown (1 E. D. Smith, 36), where the court say: “ As betwreen defendant and tenant, under a common landlord, the question is always one of negligence in the use of the premises.”

But the burden of proof is upon the plaintiff. If the apparatus was properly and sufficiently constructed, it was lawful to use it, and the defendant can be charged only with negligence in its use. Or if it was imperfect and defective to an extent, rendering its continuance or use unsafe, the defendant must be charged with the consequences of such continuance or use.

In either case the burden rests upon the plaintiff to show the facts constituting the liability.

Was enough shown to sustain the verdict?

There was no direct evidence of negligence by the defendants, or those under them, in the use of the water apparatus. Indeed there was no direct evidence that they had used it at all. But the prooLwas abundant that the apparatus was in the part of the building occupied by the defendants, and had been put there by those whom the defendants had succeeded. It was 'proved that the water flowed from such part of the building into and upon the part occupied by the plaintiff ; and some of the witnesses testified that they had examined and seen the flow coming from such apparatus.

Had there been no other proof, the plaintiff would have failed to establish the defendants’ negligi-nce. But in connection with that proof, the plaintiff showed that the apparatus was defective, insecure and insufficient to prevent, when used, the flow of water from it, such as was alleged and proven to have comé from it, and which damaged the plaintiff’s property.

In Eakin v. Brown (supra), the court say: “This negligence may consist in the careless use of well-constructed apparatus, and it may as well consist in the use of apparatus which the tenant Jcnew, or Jiad reason to Jcnow, was, in a condition unfit for use."

There was sufficient evidence, therefore, I think, to authorize the jury to find that the apparatus was in a “ condition unfit for use ; ” that it was used by the defendants, or under their authority, and that the flow of water was from its defective and insufficient condition. And such evidence established the negligence of the defendants.

The case was, therefore, given to the jury upon the proper theory.

In passing upon the main questions in the case, I have necessarily covered and disposed of the grounds for the motion to dismiss the complaint, and of the first, second, third and fourth requests of the defendants. to charge the jury, as well as the principal exceptions to the charge itself.

The other requests to charge, namely, the fifth, relating to the question of damages, and the sixth to the burden of proof, were substantially charged.

The grounds upon which I have placed my opinion sustaining the verdict in this Case, are broader, and perhaps somewhat different from those adopted at the trial.

In the charge the jury were instructed that the defendants were liable for the negligence of the employees of the department of public instruction ; and- it was left to them to find the evidence to support the proposition. ,

I have not found any evidence* however, which could support it; and if there was no other principle of law to uphold the judgment, we should be obliged to reverse it. But as I have endeavored to show that as the corporation of the city of New York succeeded, through the department of public instruction, to the powers and duties of the former board, and continued thereafter in the use of the defective apparatus, by its employees and others under its authority, it became liable for injuries caused by such use, independently of any negligence of such employees or other persons.

If I am right in that conclusion, there was sufficient evidence to sustain it; and the judgment should not be set aside, merely because the action was tried, and, perhaps, submitted to the jury, upon an erroneous theory.

There were some objections to the evidence which I have examined. • But I do not find any error in' the rulings upon them at the trial.

- The exceptions should be overruled, and judgment ordered for the plaintiff on the verdict.


author: Sedgwick, J.

text:
    THE FISK PAVEMENT AND FLAGGING COMPANY, Plaintiff and Respondent, v. CHARLES E. EVANS, Defendant and Appellant.
    I. Appeal.
    1. Conflicting evidence, how considered on. a. Appellate court must consider that part of the evidence which was in the court below found to be entitled to credence.
    II. Evidence—admissions by silence.
    1. The receipt by a purchaser without objection of a bill naming a certain person as .seller, and specifying the amount of the goods sold, constitutes an admission,
    1. That the dealings were with the person named as owner of the goods.
    2. That the amount specified was the agreed pnce of the goods. . ■,
    XU. Cause of action not set forth in the complaint.
    1. No recovery can be had thereon.

      1. This, although issue is joined as to the cause of action set forth.
    IV. New Trial.
    1. What sufficient ground, for on appeal.'

      a. The permitting a plaintiff to recover on a cause of action not contained in the complaint, is sufficient ground for, Unless,
    the plaintiff elects to remit the amount so recovered.
    Before Monell, Ch. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.
    Appeal by defendant from judgment upon report of referee.1
    The complaint averred that the plaintiff sold and delivered certain property to the defendant, and that the. defendant promised to pay therefor eight hundred and eighty-seven dollars.
    The answer deniéfét each and every allegation of the complaint, and for a separate defense, averred that the defendant purchased certain property of one B. W. Ranney, for which defendant agreed to pay three hundred and ninety-five dollars, upon condition that the property should be delivered in a good and perfect state off the day after the purchase, at pier No. 1, North river, in .the city of New York ; that it was not so delivered, but was delivered several days after the agreed day, in an imperfect condition; that by reason of “ said failure to comply with the conditions of said agreement to purchase, this defendant was obliged to pay large amounts .of extra freight on the same, and to supply at his own expense portions of said goods and implements which were necessary to the use of the same,” but had not been delivered, and that by said failure of said Ranney to cómply with his agreement, this defendant was damaged to the amount of two hundred dollars ; that “ the facts hereinbefore alleged, are the same which are referred to by the plaintiff, in the complaint herein, as constituting the cause of action against this defendant,” and the defendant demanded that said amount of two hundred dollars be set off.
    Before the'referee it was testified to that the defendant went to an office in which E. W. Ranney did his private business. By the side of its door was a sign having the name of plaintiff. Mr. Ranney testified that ne was secretary of the company, and as secretary, negotiated at that office with the defendant about the sale. At the interviews it was not said that MrRanney was acting for the company. The defendant testified that Mr. Ranney, at the time, said he sold the property as his own. The defendant went to see the property before he bought it, at the yard belonging to the plaintiff. There, before the contract of sale was completed, the foreman of the plaintiff showed the articles to defendant, to enable the latter to make his choice. The bills for the property rendered to the defendant were made in the name of the company, and for the sum of six hundred and eighty dollars. There was no specific testimony that the plaintiff- owned the goods.
    The testimony was conflicting as to the terms or conditions on which the sale was made.
    The goods, the referee found were sent and shipped at the request of defendant, at an expense of fifty-seven dollars and fifty cents.
    The referee found that the plaintiff was entitled to recover six hundred and eighty dollars and interest for the goods, and fifty-seven dollars and fifty cents for expenses of sending and shipping.
    From the judgment entered on the report the defendant appeared.

      B. E. Valentine, for appellant and defendant.

      J. K. Herbert, for respondent and plaintiff.
   Sedgwick, J.

The first exception is that the evidence did not support the finding of the referee that the defendant agreed to buy the. goods of the plaintiff ■corporation. The evidence, although meagre on this point, is sufficient to support the referee’s conclusion. So far as there was a conflict of testimony, we have to use that part which the referee must have found was ■entitled to credence. If the minute circumstances that •appear in the case were not enough to show that the defendant knew he was dealing with the corporation, the fact that the bills sent to him named the corporation as seller, and therefore owner, is decisive. This exception must be overruled, on the evidence. We do not, by implication, say that if Banney in fact acted as agent for plaintiff in selling the goods, but did not disclose the agency, the principal is not the proper plaintiff. If there were any offset against Rannev, it would be preserved in a proper case, if pleaded, in an action by the principal.

The exception as to the amount, found due by referee must, for the same reason, be overruled. Not only had the referee a right to rely on the testimony for plaintiff, generally, as to this, but the rendering of the bill for the amount of six hundred and eighty dollars, no dissent being made from it at the time on that account, was a basis for the finding.

There being a difference between plaintiff’s witnesses and defendant’s witnesses as to whether the sale was made upon the terms or conditions stated in the answer, the referee is to be upheld in the conclusion he reached, that the former gave the transaction correctly. Indeed, the letter written by the defendant to the plaintiff’s foreman strongly corroborates, the plaintiff’s position.

In that letter the defendant directed the .foreman to send the. goods to a certain place, and promised to pay the cost of doing it. The referee gave judgment in favor of plaintiff for this in the amount of fifty-seven dollars and. fifty cents. The complaint made mo claim for this. The. testimony does not show that the agreement to pay it was a part of the original contract of purchase. In my opinion, it was a cause of action distinct from the one; on which issue was taken.

For the reason last stated, the judgment should be, reversed, and a new trial ordered, with costs to appellant, to abide event, unless the respondent elects to remit fifty-seven dollars and fifty cents, with interest, • from March 6, 1872, in which case judgment will- be-affirmed without costs to either party.

Monell, Oh. J., and Freedman, J., concurred,