Green, C. J.
This is one of thirty-three actions, commenced by different plaintiffs for damages sustained by the loss of property destroyed on the 17th of December, 1835, by order of the Mayor and two Aldermen of the city of Hew York, to arrest the spread of a conflagration in that city. The plaintiffs complain that the defendant, on the 17th day of December, 1835, at the city of Hew York, blew up by gunpowder, burnt and destroyed divers goods, wares, and merchandize of the plaintiffs, of the value of $200,000.
The defendant pleads in justification, that by a statute of the state of Hew York, passed on the 9th day of April, 1813, it was among other things enacted as follows, to wit: “That when any building or buildings in the city of Hew-York shall be on fire, it shall be lawful for the Mayor, or in his absence the Recorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to direct and order the same, or any other building which they may deem hazardous, aud likely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed.”
[256]*256“That on the 17th of December, 1835,1 he aforesaid provision of the said act remaining in full force and unrepealed, certain building, to wit: numbers 44 and 46 Exchange Place in the city of New York, were on fire. That the defendant then being Mayor of the said city of New York, and Edward Taylor and Egbert Benson then being two of the Aldermen of said city, were present at the fire. That near to the said buildings so on fire, was a store, which was by the said Mayor and Aldermen, and by each of them, deemed and believed hazardous, and likely to take fire, and that the defendant, with the full consent, concurrence, and approbation of the said Alderman, caused and procured the said store to be blown up and destroyed. That the goods of the plaintiffs' we're in the said building at the time it was so blown up and destroyed, and for the reason aforesaid, the aforesaid goods, wares, and merchandize in the plaintiff’s declaration mentioned, were blown up by gunpowder, burned up and destroyed by the defendant, as it was lawful for him to do,” &c.
To this plea there is a general demurrer, and joinder in demurrer.
The only question presented by the pleadings, and discussed upon the argument of this cause is, whether the statute of the state of New York, pleaded,by the defendant,'is a sufficient justification of the alleged trespass.
It is insisted on behalf of the plaintiffs, that no statute can be constitutionally passed which authorizes the destruction of private property without compensation. That private property cannot be taken by virtue of an act of the Legislature, without indemnity. That such taking is a violation of that clause of the constitution, which provides that private property shall not be taken for public use without just compensation. It is conceded, that while the statute has made provision for indemnifying all persons having an interest in the buildings destroyed, in pursuance of the act, the owners of personal property destroyed by the same instrumentality having no interest in the building, ai’e left without compensation. Nor is it denied that the destruction of private property for public «use is a talcing of it within the meaning of the constitution.
[257]*257If the statute authorizes the destruction of private property for public use within the meaning of the constitutional provision, then clearly the act is unconstitutional, and cannot avail the defendant as a justification.
But, is property, destroyed to arrest the progress of a conflagration, taken for public use, within the constitutional sense of the term ?
The right to take private property for public use is an attribute of sovereignty — it is inseparable from the sovereign power. It is the right of eminent domain, of sovereign or transcendental property in the goods of the subject. It is a right founded on the nature and end of sovereignty, growing out of the nature of the social compact, by virtue of which every member of society holds his property upon condition that it is subject to be taken for the use of the State whenever the public good requires it. It is justified on the ground of state necessity. It is founded on the same principle as the right of raising taxes and subsidies for the support of government and the right of regulating the use of private property by sumptuary laws. 2 Burlen 145, c. 5 § 6; Ib. 159, c. 5 § 24—29; 12 Coke 13, Case of the Prerogative, &c.
But the right to destroy property to prevent the spread of a conflagration rests upon other and very different grounds. It appertains to individuals, not to the State. It has no necessary connection with, or dependence upon the sovereign power. It is a natural right existing independently of civil government.
It is both anterior and superior to the rights derived from the social compact. It springs not from any right of property claimed or exercised by the agent of destruction in the property destroyed, but from the law of necessity. The principle as it is usually found stated in the books is, that “ if a house in a street be on fire, the adjoining houses may be pulled down to save the city.” But this is obviously intended as an example of the principle, rather than as a precise definition of its limits. The principle applies as well to personal as to real estate; to goods as to houses; to life as to property — in solitude as in a crowded city ; in a state of nature as in civil society. It is referred by moralists and by jurists to the same great principle, which justi[258]*258fies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard of goods in a tempest for the safety of the vessel; with the taking of food to satisfy the instant demands of hunger j with trespassing upon the land of another to escape death from an enemy. It rests upon the maxim, “ Beeessitas induciz privilegium quoad jura privata.” Bacon’s Elem. Reg. 5; Noys’ Maxims, Max. 25 (Herring’s Ed. p. 30); Puffen, lib. 2, c. 6, § 8; Witherspoon’s Mor. Phil. 136, § 16; 2 Kent’s Com. (2d Ed.) § 338; Stone et al. v. The Mayor et al. 25 Wend. 173. And the common law adopts the principle of the natural law, and places the justification of an act otherwise tortious, precisely upon the same ground of necessity.
It must be so pleaded in justification. Hence the plea in such case is not the public good, the eminent domain, the sovereign power, but necessity. Com. Dig. Pl. 3, M. 30; 3 Chit. 1118.
It is true that by many writers of high authority the ground of justification of an act done for the public good, and of an act committed through necessity, are not accurately distinguished. They are both spoken of as grounded on necessity, and they doubtless are so. But the one is a state, the other an individual necessity, though ofttimes resulting in a public or general good. The one is a civil, the other a natural right. The one is founded on property and is an exercise of sovereignty. The other has no connexion with, or dependence upon, the one or the other.
Nor can property destroyed to prevent the spread of a conflagration, be said in any appropriate sense to be destroyed for the public good.
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Green, C. J.
This is one of thirty-three actions, commenced by different plaintiffs for damages sustained by the loss of property destroyed on the 17th of December, 1835, by order of the Mayor and two Aldermen of the city of Hew York, to arrest the spread of a conflagration in that city. The plaintiffs complain that the defendant, on the 17th day of December, 1835, at the city of Hew York, blew up by gunpowder, burnt and destroyed divers goods, wares, and merchandize of the plaintiffs, of the value of $200,000.
The defendant pleads in justification, that by a statute of the state of Hew York, passed on the 9th day of April, 1813, it was among other things enacted as follows, to wit: “That when any building or buildings in the city of Hew-York shall be on fire, it shall be lawful for the Mayor, or in his absence the Recorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to direct and order the same, or any other building which they may deem hazardous, aud likely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed.”
[256]*256“That on the 17th of December, 1835,1 he aforesaid provision of the said act remaining in full force and unrepealed, certain building, to wit: numbers 44 and 46 Exchange Place in the city of New York, were on fire. That the defendant then being Mayor of the said city of New York, and Edward Taylor and Egbert Benson then being two of the Aldermen of said city, were present at the fire. That near to the said buildings so on fire, was a store, which was by the said Mayor and Aldermen, and by each of them, deemed and believed hazardous, and likely to take fire, and that the defendant, with the full consent, concurrence, and approbation of the said Alderman, caused and procured the said store to be blown up and destroyed. That the goods of the plaintiffs' we're in the said building at the time it was so blown up and destroyed, and for the reason aforesaid, the aforesaid goods, wares, and merchandize in the plaintiff’s declaration mentioned, were blown up by gunpowder, burned up and destroyed by the defendant, as it was lawful for him to do,” &c.
To this plea there is a general demurrer, and joinder in demurrer.
The only question presented by the pleadings, and discussed upon the argument of this cause is, whether the statute of the state of New York, pleaded,by the defendant,'is a sufficient justification of the alleged trespass.
It is insisted on behalf of the plaintiffs, that no statute can be constitutionally passed which authorizes the destruction of private property without compensation. That private property cannot be taken by virtue of an act of the Legislature, without indemnity. That such taking is a violation of that clause of the constitution, which provides that private property shall not be taken for public use without just compensation. It is conceded, that while the statute has made provision for indemnifying all persons having an interest in the buildings destroyed, in pursuance of the act, the owners of personal property destroyed by the same instrumentality having no interest in the building, ai’e left without compensation. Nor is it denied that the destruction of private property for public «use is a talcing of it within the meaning of the constitution.
[257]*257If the statute authorizes the destruction of private property for public use within the meaning of the constitutional provision, then clearly the act is unconstitutional, and cannot avail the defendant as a justification.
But, is property, destroyed to arrest the progress of a conflagration, taken for public use, within the constitutional sense of the term ?
The right to take private property for public use is an attribute of sovereignty — it is inseparable from the sovereign power. It is the right of eminent domain, of sovereign or transcendental property in the goods of the subject. It is a right founded on the nature and end of sovereignty, growing out of the nature of the social compact, by virtue of which every member of society holds his property upon condition that it is subject to be taken for the use of the State whenever the public good requires it. It is justified on the ground of state necessity. It is founded on the same principle as the right of raising taxes and subsidies for the support of government and the right of regulating the use of private property by sumptuary laws. 2 Burlen 145, c. 5 § 6; Ib. 159, c. 5 § 24—29; 12 Coke 13, Case of the Prerogative, &c.
But the right to destroy property to prevent the spread of a conflagration rests upon other and very different grounds. It appertains to individuals, not to the State. It has no necessary connection with, or dependence upon the sovereign power. It is a natural right existing independently of civil government.
It is both anterior and superior to the rights derived from the social compact. It springs not from any right of property claimed or exercised by the agent of destruction in the property destroyed, but from the law of necessity. The principle as it is usually found stated in the books is, that “ if a house in a street be on fire, the adjoining houses may be pulled down to save the city.” But this is obviously intended as an example of the principle, rather than as a precise definition of its limits. The principle applies as well to personal as to real estate; to goods as to houses; to life as to property — in solitude as in a crowded city ; in a state of nature as in civil society. It is referred by moralists and by jurists to the same great principle, which justi[258]*258fies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard of goods in a tempest for the safety of the vessel; with the taking of food to satisfy the instant demands of hunger j with trespassing upon the land of another to escape death from an enemy. It rests upon the maxim, “ Beeessitas induciz privilegium quoad jura privata.” Bacon’s Elem. Reg. 5; Noys’ Maxims, Max. 25 (Herring’s Ed. p. 30); Puffen, lib. 2, c. 6, § 8; Witherspoon’s Mor. Phil. 136, § 16; 2 Kent’s Com. (2d Ed.) § 338; Stone et al. v. The Mayor et al. 25 Wend. 173. And the common law adopts the principle of the natural law, and places the justification of an act otherwise tortious, precisely upon the same ground of necessity.
It must be so pleaded in justification. Hence the plea in such case is not the public good, the eminent domain, the sovereign power, but necessity. Com. Dig. Pl. 3, M. 30; 3 Chit. 1118.
It is true that by many writers of high authority the ground of justification of an act done for the public good, and of an act committed through necessity, are not accurately distinguished. They are both spoken of as grounded on necessity, and they doubtless are so. But the one is a state, the other an individual necessity, though ofttimes resulting in a public or general good. The one is a civil, the other a natural right. The one is founded on property and is an exercise of sovereignty. The other has no connexion with, or dependence upon, the one or the other.
Nor can property destroyed to prevent the spread of a conflagration, be said in any appropriate sense to be destroyed for the public good. It may be destroyed for the benefit of one, of a few, or of many ; but it is not destroyed for the benefit of the State; nor is it taken in aid of any of these public objects, which it is the peculiar and appropriate duty of every State to foster and promote. I am of opinion, therefore, that the destruction of buildings to prevent the spread of a conflagration, is not the taking of property for public use within the meaning of the constitution.
Nor is the principle altered by the fact that the destruction in [259]*259the present instance was committed under Legislative sanction. The right of destruction existed prior to the enactment. The statute created no new power. It conferred no new right. It merely converted a right of necessity into a legal right. It regulated the mode in which a previously existing power should be exercised.
The statute does not authorize the destruction. It could not do so. It would be an attempt to take private propérty for private use. Nor did the statute deprive any citizen of his natural right to destroy buildings to prevent the spread of a fire in a case of necessity. Every citizen may, notwithstanding the statute, still exercise that right at the peril of being held responsible for an error of judgment as to the existence of the necessity. But the statute vested the power of judging of the existence of the necessity in the discretion of certain officers designated by the statute, and made their judgment conclusive of the existence of that necessity. In so doing, I do not perceive that the Legislature acted unconstitutionally. The policy of the statute, and whether upon principles of equity, provision should have been made to indemnify those whose property has been sacrificed for the safety of the city, are points upon which a difference of opinion may exist, but with which this court has no concern.
It is further objected that the act is unconstitutional, upon the ground that the party whose property is injured, is deprived of the right of trial by jury. The objection is not well founded.
The party is not, in point of fact, deprived of a trial by jury. The evidence necessary to sustain the defence, is changed. Even if the party were deprived of a trial by jury, the statute is not therefore necessarily unconstitutional. Bonaparte v. The Camden & Amboy R. R. Co. Baldw. 220; Scudder v. The Trenton Del. Falls Co. Saxton 687; Beekman v. The Sar. and Sch. R. R. Co. 3 Paige 75.
The only remaining ground of objection to the validity of the plea is, that the statute on which the defendant relies for justification, does not in terms authorize the destruction of personal property, but only of buildings deemed hazardous. That the Legislature have left the right to destroy personal property as it [260]*260stood at common law, undisturbed by the provisions of the statute. It may be suggested, moreover, that the necessity of destroying the goods, did not result necessarily from the necessity of destroying the building. That though the destruction of the building may have been necessary, yet by a brief delay, the goods of the plaintiffs might have been saved. That the justification, therefore, may be perfect as to the building, but fail as to the goods.
The act, however, which constitutes the Mayor and Aider-men judges of the necessity of destroying the building, must of consequence make them judges also of the time at which the act of destruction becomes necessary. It must be assumed, therefore, upon the pleadings, that the building was destroyed at the time, and in the manner, demanded by the imminency of the danger. It must further be assumed, that the destruction .of the building necessarily involved the destruction of the goods.
The defendant, then, in this action, is attempted to be made responsible for the consequences of an act which, by the statute, he was especially authorized to perform, for the performance of a duty which, as a public officer, he was bound to execute. He was acting for no private emolument, but in the discharge of a public duty. The act was not done for his individual benefit. H.e derived from it no advantage not shared in common with his fellow-citizens. In the performance of his duty he acted, it must be assumed, with due skill and caution. There is no allegation or pretence to the contrary. Under these circumstapces I deem it clear that the defendant is not liable for the destruction of the plaintiff’s goods, or for any other inevitable consequence of the destruction of a building.
It is a well settled principle, that where a person in discharge of a public duty, not acting for pi’ivate emolument, unwittingly injures another in the performance of the act while acting with due skill and caution, he is not answerable for damages. The Governor, &c. v. Meredith, 4 T. R. 794; Sutton v. Clark, 6 Taunt. 29; Am. Law. Mag. (April, 1843) p. 52; Sinnickson v. Johnson, 2 Harr. 129, 150; Ten Eyck, v. The Del. & Rar. Canal Co. 3 Harr. 200. The demurrer must be overruled.