LLOYD v. THE MAYOR, C. OF NEW YORK, 5 N.Y. 369 (1851)

LLOYD against THE MAYOR, ALDERMEN, c. of the CITY of NEW YORK.

Court of Appeals of the State of New York.
September Term, 1851

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A.J. Willard, for appellants.

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George W. Stevens, for respondents.

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BY THE COURT, FOOT, J.

The corporation of the city of New York possesses two kinds of powers, one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty — the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter, is a corporate, legal individual.

The distinction between these two classes of powers is obvious, and has been frequently recognized and established in our courts. (Wilson v. The Mayor, c. of New York, 1 Denio, 595 Bailey v. Same, 3 Hill R. 531; S.C. opin. of Hand Senator, 2 Denio, 450; Rochester White Lead Co. v. The City of Rochester, 3 Comst. R. 463.)

Although the difference between the two kinds of powers is plain and marked, yet as they approximate each other, it is oftentimes difficult to ascertain the exact line of distinction. When that line is ascertained, it is not difficult to determine the rights of parties, for the rules of law are clear and explicit which establish the rights, immunities and liabilities of

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the appellants when in the exercise of each class of powers. All that can be done probably with safety is, to determine, as each case arises, under which class it falls.

The act which caused the injury in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or in other words the establishing of rules and regulations in respect to cleaning the sewers, or keeping them in a state of cleanliness, is one thing, and the act of cleaning them is another. The power and duty to perform the latter is clearly ministerial, and falls under the class of private powers. The principle of respondeat superior
consequently applies, and the judgment must be affirmed.

The counsel for the appellants in this case pressed with earnestness and ability upon the attention of the court, various considerations of policy and convenience, in favor of exempting the corporation from liability in all cases, in which it must necessarily employ agents to discharge the duties enjoined upon it by law.

As a corporation can only act by agents, such a rule of action would exempt it from legal liability in every case, whatever might be the circumstances; the natural and certain consequence of which would be, innumerable applications to the common council for redress legislatively, and which would bring in their train an organized body of soliciting parties and agents, the allowance sometimes of extravagant and unjust claims, the rejection at other times of meritorious ones, in a word, all the evils attending a legislative body having control over large funds and exposed to the solicitations and devices of a corps of artful and unscrupulous claimants and their hired or interested agents.

Where the city now pays in accordance with just legal principles hundreds of dollars, it would probably then pay thousands, besides having in the halls of its local legislature scenes of a most forbidding character.

Judgment affirmed.

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