ing to individuals by its neglect to perform the duty, or for the want of proper care or want of reasonable skill of its officers or servants acting under its direction or authority in the execution of such a duty; and, with the qualifications stated, it is liable on the same principles and to the same extent as an individual or a private corporation would be under like circumstances. * * So in respect to its failure to keep its streets in a safe condition for public use, where this is a duty resting upon it."

See Cooley, Const. Lim. (6th Ed.) p. 302.

In this state, in the case of Bailey v. Mayor, etc., 3 Hill, 531, 38 Am. Dec. 669, Chief Justice Nelson clearly stated the distinction between acts done by the city or town as a municipal or public body exclusively for public purposes, and those done for its own private advantage or emolument, and assumed, as unquestionable, that:

"Municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual own. ers and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways, and churches; are liable to poor rates; and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject."

In a note to Conrad v. Village of Ithaca, 16 N. Y. 158, is given the opinion of Selden, J., in Weet v. Trustees (see Id. 161), which is held to lay down the principles on which the leading case was decided. In this there is a careful review of the authorities, and the conclusion is reached that:

"If we regard the injury to the plaintiff as the result of mere neglect to keep the highways of the village in repair, the defendants would be responsible in this action for such neglect, upon the ground that their acceptance of the franchise granted by their charter raised an implied undertaking or contract on their part to perform that duty, which, upon the principles referred to, inures to the benefit of every individual interested in such performance."

In the opinion of Selden, J., in the case cited, is given the rule which makes municipal corporations liable under the maxim of respondeat superior, as follows:

"Whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance."

See Missano v. City of New York, 160 N. Y. 123, 127, 54 N. E. 744, where the above rule is cited with approval.

In Storrs v. City of Utica, 17 N. Y. 104, 72 Am. Dec. 437, the court, in considering a charge to a jury in which it had been laid down as the law that if, in the course of a public improvement, it became necessary for the city corporation to make an excavation in a city street, so as to render it unfit or dangerous to be traveled upon, it became the duty of the city to take measures, either by lighting the street or otherwise, to warn travelers of the danger, say: "When a case can be found of respectable authority holding that a city corporation, having the exclusive control of the streets, owes to the public no duty in respect to them, and is not liable for accidents occasioned by gross neglect, then some progress will have been made in the argument for

and 106 New York State Reporter

exonerating the defendant from liability for the injuries now in question. That the duty exists is not denied, and the doctrine that persons receiving special injury from its nonobservance can maintain an action therefor was examined by this court and asserted in the recent case of Hickok v. Village of Plattsburgh, 16 N. Y. 161."

To the same effect see Lloyd v. Mayor, etc., 5 N. Y. 369, 374, 375, 55 Am. Dec. 347.

In Maxmilian v. Mayor, etc., 62 N. Y. 160, 20 Am. Rep. 468, the distinction between the duties which belong to the municipality and those which are merely a part of the administration of government is clearly pointed out, and many of the authorities are collated. The rule is here stated to be that where the duty is upon the city itself, and not upon public officers appointed by it, where it accepts the duty and the power to perform it, and itself, by its own. agents, sets about the work, or undertakes to set about it, by its own agents, then, for negligent omission to do or for doing in a negligent manner, it may be liable. The court adds, upon the authority of Conrad v. Village of Ithaca, supra, that the duty of keeping in repair streets, bridges, and other common ways of passage, and sewers, and a liability for neglect to perform that duty, rests upon an express or implied acceptance of the power and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents as its own corporate act.

In Bieling v. City of Brooklyn, 120 N. Y. 98, 24 N. E. 389, the court recognize that "there are various duties which are legitimately those of the corporation, among which is that of taking care of the streets within it"; and it was said that the city would be responsible for the consequences resulting from their negligent action or omission in that service injuriously to individuals. The court in this. case recognized the fact that the action for negligence is one at common law, for it is said (page 107, 120 N. Y., page 391, 24 N. E.) that: "This is in harmony with the common-law rule applicable to municipal officers who are charged with the performance of corporate duties and may employ subordinates to aid in their accomplishment. The corporation in such case, and not he, is the superior, and liable to third persons for the injuries occasioned to them by the negligence of such subordinates."

See, also, Nagel v. City of Buffalo, 34 Hun, 1, 4, where the court

say:

"His cause of action is not given by any statute, but is founded on the principles of the common law."

In Seymour v. Village of Salamanca, 137 N. Y. 364, 33 N. E. 304, the court say that, when a street has been opened for public travel, the ministerial duty to keep the street and sidewalk in repair attaches, and for a negligent omission by the village authorities to perform such duty, whereby a person, lawfully passing along the street and himself using due care, is injured, an action lies in his favor against the village for damages.

In Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667, it is said that, when we find that the power conferred has relation

to public purposes and is for the public good, it is to be classified as governmental in its nature, and it appertains to the corporation in its political character; but when it relates to the accomplishment of private corporate purposes, in which the public is only indirectly concerned, it is private in its nature, and the municipal corporation, in respect to its exercise, is regarded as a legal individual. In the former case the corporation is exempt from all liability, whether for nonuser or misuser; while in the latter case it may be held to that degree of responsibility which would attach to an ordinary private. corporation. Where a duty specifically enjoined upon the corporation as such has been wholly neglected by its agents, and an injury to an individual arises in consequence of the neglect, the corporation will be held responsible.

In Reed v. Bank, 130 Mass. 443, 39 Am. Rep. 468, the court say: "It is too late to discuss the question, once much debated, whether a corporation can commit a trespass, or is liable in an action on the case, or subject generally to actions of tort as individuals are. The books of reports for a quarter of a century show that a very large proportion of actions of this nature, both for nonfeasance and for misfeasance, are against corporations. Their powers and their duties are defined by their charters, aud the rights and duties are legal rights and duties, to be enforced by the ordinary rules of law. It can no more permit a dangerous pitfall or a dangerous obstruction to exist upon its land, to the injury of another, than can any other corporation or an individual. In its business transactions with individuals, it is subject to the same rules of law as other corporations or individuals."

See Bank v. Graham, 100 U. S. 699, 702, 25 L. Ed. 750; Fogg v. Railroad Corp., 148 Mass. 513, 516, 20 N. E. 109, 12 Am. St. Rep. 583; Nims v. Boys' School, 160 Mass. 177, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. Rep. 467.

In Railroad Co. v. Quigley, 21 How. 202, 210, 16 L. Ed. 73, 75, the court say:

"With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brought into contact or collision. The result of the cases is that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances."

It will thus be seen that the common-law rule with reference to corporations is the same as that laid down by the constitution of this state. They are to "have the right to sue and shall be subject to be sued in all courts in like cases as natural persons"; and the distinction which is made between quasi public corporations and municipal corporations proper is no exception to the general rule rec- · ognized by the common law. A natural person acting in a governmental capacity cannot be sued in the courts of this state with respect to his duties as a part of the government, because the government itself cannot be sued; and the same limitation applies to a quasi-public municipal corporation. The whole proposition is concisely stated by the court in Water Co. v. Ware, 16 Wall. 566, 573, 21 L. Ed. 485, 487, where it is said;

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"Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travelers, and if they neglect so to do, in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person as a traveler receives injury through such defect either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want of repair in the highway; but he must also allege and prove that the corporation had notice of the defect or want of repair, and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public, and consequently, if one person might sue for his proportion of the damages for the nonperformance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation, and for that reason it was held at common law that no action founded merely on the neglect to repair would lie. Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair, and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect."

See Weightman v. Corporation of Washington, 1 Black, 39, 52, 53, 17 L. Ed. 52, and authorities there cited; Barnes v. District of Columbia, 91 U. S. 540, 551, 23 L. Ed. 440, and authorities there cited.

According to the Weightman Case, supra, it was decided in the case of Henly v. Mayor, etc., 5 Bing. 91, which was the case referred to as establishing the common law in Water Co. v. Ware, supra, that in order to make a good declaration, it must appearFirst, that the corporation is under a legal obligation to repair the place in question; secondly, that such obligation is matter of so general and public concern that an indictment would lie against the corporation for nonrepair; thirdly, that the place in question is out of repair; and, lastly, that the plaintiff has sustained some peculiar damage beyond the rest of the king's subjects by want of such repair; and after explaining these several conditions Baron Parke, who wrote the opinion of the house of lords in the final appeal, stated that it was clear and undoubted law that, wherever an indictment would lie for nonrepair, an action on the case would lie at the suit of a party sustaining any particular damage.

The common law of England is derived from immemorial usage and custom, originating from the acts of parliament not recorded, or which have been destroyed or lost. It is a system of jurisprudence founded on the principles of justice, and in the United States is composed partly of the common law of England and partly of the usages which have grown up in, and are indigenous to, the United States. 6 Am. & Eng. Enc. Law, 270, 271, and notes; Bouv. Law Dict. tit. "Law." The common law forms the basis of our jurisprudence, and rights and liabilities, except so far as modified by statute, must be decided in accordance with its principles (Bogardus v. Trin

ity Church, 4 Paige, 178); and it is presumed to exist in this state. in the absence of proof to the contrary (6 Am. & Eng. Enc. Law, 281, 282; Stokes v. Macken, 62 Barb. 145). No one who has questioned that an action for negligence against a municipality was an action at common law has ever produced a statute giving a right of action for negligence, except in those instances in which the law has been extended in its operation, and none of them has ever been able to show where the legislature has abolished this right of action; and the presumption must be, therefore, that it exists, with whatever of modification, amplification, or adaptation which has grown up within the jurisprudence of the state. To these we have sufficiently adverted already, and it may be stated as a result of these authorities that the plaintiff in the present case had a right of action, independently of any action on the part of the legislature, except in so far as the legislative power of the state was invoked in the creation of the village of Port Jervis, and in imposing the duty of keeping its streets and highways in a safe condition for public travel. When this was done, and when the defendant, by its negligence, produced a condition of affairs by which the plaintiff fell and was injured, through no fault of his own, a complete right of action came into existence by operation of the common law of the state of New York, and the municipal corporation known as the "Village of Port Jervis" became liable The right of the plaintiff to recover was complete, and the question to be determined is whether the legislature of this state had the power to step in and take that right away without affording the plaintiff a reasonable opportunity to invoke the aid of the courts,-whether the provision of the charter of the village of Port Jervis, requiring notice of intention to sue to be served within 48 hours of the happening of the accident, is due process of law. Under the provisions of the charter of the village of Port Jervis, there are two rules in respect to the same class of actions. If a street railroad corporation, a business corporation, or an individual is guilty of negligence, resulting in injury to another, a right of action vests in the injured person, and he may bring an action at any time within the general statute of limitations to recover damages, without giving notice of such intention. Any other rule would result in a popular storm of indignation. But a different rule is attempted to be brought into operation when the same injury results from the negligence of the municipal corporation, and the injured person, although rendered unconscious and absolutely incapable of doing any kind of business, is required to give a notice of his intention within a period of 48 hours. In effect the legislature has attempted to say that while it could not prevent a cause of action accruing as against the corporation, which it had charged with the duty of keeping the streets of the village in a reasonably safe condition for public travel, if the municipality could keep the injured party unconscious or in ignorance of his rights for a period of two days, one of which may be a legal holiday and the other a Sunday, it would absolve it from all legal responsibility for its wrong, while other corporations and individuals, for the same wrong, should be held to the common-law liability during the entire statutory

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