Barney Dumping-Boat Co. v. City of New York

• Decision Date: 12 August 1889
• Parties: BARNEY DUMPING-BOAT CO., et al. v. MAYOR, ETC., OF THE CITY OF NEW YORK.
• Court: U.S. District Court — Southern District of New York

40 F. 50

BARNEY DUMPING-BOAT CO., et al. v. MAYOR, ETC., OF THE CITY OF NEW YORK.

United States Circuit Court, S.D. New York.

August 12, 1889

Henry R. Beekman, for appellants.

Hyland & Zabriskie, for appellees.

WALLACE J.

The testimony in this case shows clearly that the injuries to the dumping-boat for which the libelants seek to recover damages were caused by the carelessness of those in charge of the steam-tug belonging to the respondents. Their negligent acts were committed while they were engaged in removing refuse from the streets. These persons were under the immediate employment of the commissioner of street cleaning of the city of New York. That officer, as the head of that municipal department, had the custody of the tug. By act of the legislature known as the 'consolidation act' he is charged with the duty of keeping the streets cleaned, and removing refuse, 'as often as the public health and the use of the streets may require,' and is invested with authority to engage and discharge at his discretion all the employes necessary for the performance of the duties of the department. The only legal question in the case which merits notice is whether the city is liable for the negligence of the employes of this department. If the duties delegated to him by law are such as primarily devolve upon the city, as a municipal or corporate obligation, he and his subordinates are the agents of the city, and the respondents are liable for their acts of misfeasance or non-feasance done in the course of their ordinary employment. It does not seem reasonable to treat the commissioner as an officer of the general public rather than of the city. His duties, unlike those of the officers of the departments of health charities, fire, and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself, which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to them. Many cases are reported in the decisions of the state courts in which the city of New York has been held responsible to persons who have sustained injuries in consequence of obstructions which have been negligently suffered to intercept the safe use of the streets. The obligation of the city to keep its streets in such condition that those who use them may do so safely has been repeatedly declared, and the failure to remove ice or snow or dangerous accumulations of any kind by the proper authorities is a breach of that obligation. See Providence v. Clapp, 17 How. 161; Todd v. City of Troy, 61 N.Y. 506. The duty of cleaning the streets necessarily comprehends the duty of removing such accumulations. It is quite immaterial that the powers and duties of the commissioner are plenary, and within their sphere exclusive of the authority of other officers of the city. The real question is whether his duties are such as primarily rest upon the municipality itself. Barnes v District of Columbia, 91 U.S. 540; Ehrgott v Mayor, 96 N.Y. 264. The precise question has been resolved against the contention of the respondents in the case of Engle v. Mayor. The...