Summary
In Lee v. Village of Sandy Hill (40 N.Y. 442) the defendant was charged with having committed, through the act of its representatives, trespass in unlawfully tearing down a fence.
Summary of this case from Costich v. City of RochesterOpinion
Submitted April 2, 1859
Decided June 12th, 1869
Hughes Northrup, for the appellant. U.G. Paris for respondent.
The doctrine is too well settled in this court to admit of discussion, that municipal corporations, like the defendant, are liable in trespass for the illegal acts of its officers. ( Conrad v. The Trustees of the Village of Ithaca, 16 N.Y.R., 162; Howell and others v. The City of Buffalo, 15 N.Y.R., 512; Hickox v. The Trustees of the Village of Plattsburgh, 16 N YR., 161, note; Weet v. The Trustees of the Village of Brockport, 16 N.Y.R., 161; Stores v. The City of Utica, 17 N YR., 104.) The rule is laid down in Angel and Ames, generally, that as natural persons are liable for the wrongful acts and neglects of their servants and agents done in the course and within the scope of their employment, so are corporations upon the same grounds, in the same manner, and to the same extent. (Page 302, § 10, 3d ed.) It is not very important in this case to determine whether the trustees in this case acted as mere agents of this corporation, or whether their acts are to be regarded as the acts of the corporation, performed by the principal managing officers of the corporation; for in either view of the case, the defendants are liable for their acts in causing the fence in question to be torn down and removed. We will consider the case, in the first place, upon the supposition that in regard to the duties devolved upon the trustees as to the highway or streets within the corporation, they act as the mere agents of the corporation; and it cannot be denied upon the decisions in this court, that to this extent it is settled that they do act for the corporation, and that the corporation is liable for their acts to the extent of the rule governing principal and general agent.
The principal is liable in a civil suit, to third persons, for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances and misfeasances of his agent in the course of his employment, although the principal did not authorize, justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them. (Story on Agency, § 452, p. 563.)
This rule of liability is not based upon any presumed authority in the agent to do the acts, but upon the ground of public policy, and that it is more reasonable, where one of two innocent persons must suffer from the wrongful act of a third person, that the principal, who has placed the agent in the position of trust and confidence should suffer, than a stranger. ( Hern v. Nichols, 1 Salk. R., 289.) I examined this question of the extent of the liability of the principal for the wrongs of the agent, at the last term, in the case of Davis and others v. Bemis (in MS.), and which opinion was approved by the court. All that is necessary to render the principal liable for the malfeasance or torts of the agent is that the tort must be committed in the course of the agency (Story on Agency, § 456); not that the agency authorized it, or, as it is expressed by Paley, that the employment afforded the means of committing the injury. (Dunlop and Paley, on Agency, 306.) The rule as to the liability of corporations, for the acts of their agents, is stated by Chief Justice SHAW, in the case of Thayer v. The City of Boston (19 Pick R., 516); as follows: It must appear that they were expressly authorized to do the acts, by the city government, or that they were done bona fide, in pursuance of a general authority to act for the city on the subject to which they relate, c. This is the precise language in which the rule is laid down in Angel and Ames on Corp., p. 304, § 10, 3d ed., where the case of Thayer v. City of Boston, is referred to and approved. This is certainly laying down the rule much narrower than it is held in most of the cases in the books, as between principal and agent generally where the principal has been held liable for the intentional wrongs of the agent, committed in the course of his employment. I do not mean to assert the rule as against municipal corporations broader than it is laid down by Chief Justice SHAW, in the case referred to, as that will clearly embrace this case. Applying the rule as stated, that it must appear that the act was done by the agents of the corporation, bona fide, in pursuance of a general authority in relation to the subject of it, and I do not see why the defendants are not to be held for the acts of these trustees in this case. By section 2, of the defendants' charter, it is provided that corporations may exercise such powers as are or shall be conferred by law or by this act, c.
The second section of the charter declares that the officers of the corporation shall be five trustees. The eighth section provides that the trustees of the said village shall be commissioners of highways of the said village, and shall have the same powers, and be subject to the same duties over the roads, streets and alleys of said village, as commissioners of highways in towns. (Laws of 1856, chapter 48); and by chapter 120, of the Laws of 1860, the trustees are authorized to lay out or alter any street or highway through, or upon any garden, or land, or yard, or other lands in said village.
The undisputed evidence in this case shows beyond cavil, that these trustees, in ordering the removal of this fence, were acting in pursuance of their authority in regard to the streets of the village, and there is no evidence to show that they did not act in good faith; while, on the contrary, it is fairly to be inferred from the evidence that they did so act. Cherry street, the street in question, was only two rods wide, and it seems that the subject of having it a three rod street was brought before the trustees on the petition of R.C. Carey, and a request to have the street widened to three rods; and on the 7th of July, 1862, the trustees passed and recorded a resolution that Cherry street be widened in accordance with the petition of R.C. Carey and others, and that said street, when widened, be three rods wide,c. No further action seems to have been taken under this resolution; but on the 6th November, 1862, the trustees proceeded to make and file an order, as they were authorized under the statute to do, ascertaining, and describing, and entering of record this said street, and in this order they described it as a three rod street. In this they probably committed an error, for although the street was originally dedicated or intended to be dedicated three rods wide, and was actually opened and used to that extent, yet as there was no sufficient acceptance by the corporation or the trustees, the judge, at Special Term, concludes, and rightly, I think, that there was no such dedication before the fence was moved out as that the corporation can hold the street, to the width of three rods. The trustees undoubtedly supposed they could hold it, and were acting colore officii and in good faith, I have do doubt, in giving the order to the overseers to open the street by removing back the fence, so that the street would be three rods wide. It was their duty thus to open the street if their former acts were valid, and it follows upon well settled principles of law that they were acting within the scope of their public duties as trustees, and that the corporation are liable, assuming them to be mere agents of the corporation.
The decisions of both the Special and General Term appear to have proceeded upon the rule of law which cannot be applied to the case, that as the act was unlawful and the trustees cannot be justified in the law, that therefore the defendant as principal, is not liable. This, as we have seen, is not the rule of law applicable to such a case as the present. No one will pretend that the principal is liable for the willful trespasses of his agent, committed without color of right, or semblance of authority. This case is not of that character, and upon no construction of the evidence, can it be regarded as such. It was the duty of these trustees, if they were right in their conclusion that there had been a dedication of this street to three rods in width, to cause it to be described, entered of record and opened. The most that can be claimed, is that they, while acting within the general scope of their duties, have committed a mistake and done an illegal act. In such a case, the corporation is liable. There is another view which may be taken of this case, and which is not without authority to support it, which renders the defendants' liability equally clear. The only officers who can act for, and who represent this corporation as we have seen, are these trustees. It was said by Judge SELDEN, in delivering the opinion of this court, in the case of Perkins v. N.Y. Central R.R. Co. (24 N.Y.R., 213), that a distinction is no doubt to be made between the directors or managing officers of a corporation and its subordinate agents. As the former exercise all the powers of the corporation and are its only direct medium of communication with outside parties, they must, in respect to all external relations, be considered as identical with the corporation itself.
He says, in considering this very question, in the case of Weet v. The Trustees of the Village of Brockport (16 N YR.R., 170), and which was adopted as the opinion of the court, in the case of Hickox v. The Trustees of the Village of Plattsburgh (16 N.Y.R., 161), that there can be no doubt that the powers conferred upon the trustees devolve upon the corporation. That on all charters, creating corporations, powers conferred upon those who stand in the place of, and represent the corporative body, are deemed to be conferred upon the corporation itself. And that the defendants are to be treated as invested in their corporate capacity, with all the powers of commissioners of highways, over the roads and streets of their village. These views, if sound, and it seems to me they are, leave no doubt as to the defendants' liability. It has been held in several cases in this court, that these duties in regard to the streets, which are nominally upon the trustees, rest upon the corporation, and that the corporation is liable for any misfeasances of the trustees in regard thereto. The trustees are the managing officers of the corporation, and they alone can exercise the powers of the corporation. They represent and speak, and act for it, and their acts in the case under consideration must be regarded as the act of the corporation. Herein lies the error in the opinion of the court below. It is, if I properly appreciate the argument, that this is not to be regarded as the act of the corporation because it was an unauthorized act; an act which the corporation had no right to do, and that it shall not be deemed the act of the corporation, although done by the managers, who are the proper representatives of the corporation. This will hardly do, as it would, carried to its legitimate result, always excuse the corporation. The act, if an authorized one, would certainly not render them liable, and if an unauthorized one, then it is to be the act of trustees, and not the corporation.
It certainly would be difficult to charge a corporation for a misfeasance under such a rule, as the corporation can only act through some representative, and if it is not liable for the wrongful acts of its principal representatives or managers, much less would it be for any act of its subordinate agents.
The verdict in this case should not have been interfered with, and the judgment of the General and Special Terms must be reversed and a new trial granted or judgment rendered for the plaintiff on the verdict. The verdict was not set aside as against evidence, but upon legal grounds solely, and the decision of the General Term is properly reviewable in this court.
HUNT, Ch. J., WOODRUFF, GROVER and DANIELS, JJ., concurred.
LOTT, J., thought there was a mistrial, and that the court had no power to order a verdict for one party, and, on reserving the case for further consideration, direct judgment for the other. It could only set aside the verdict and order a new trial, if satisfied, on further consideration, the action could not be maintained.
JAMES, J., was for affirmance.
Judgment reversed, and judgment ordered for the plaintiff upon the verdict.