By the Court, Johnson, J.
The principle, respondeat superior, does not apply to a case like this, and affords no shield to the defendant. This is fully settled in the cases of Blake v. Ferris, (1 Seld. 48;) Pack v. The Mayor &c. of [172]*172New York, (4 id. 222;) and Kelly v. Same, (1 Kern. 432.) He is in no sense an agent or servant of any one, but is exercising an independent employment under an express and specific contract. This contract the statute authorizes the contracting board to make; which board is composed of the canal commissioners, the auditor of the canal department, and the state surveyor and engineer. It is part of the system adopted by the state for maintaining the public works, and keeping its property in repair. Formerly this was done through the machinery or agency of superintendents of repairs, who were public officers, charged by statute with the duty of doing, or causing to be done, under the general supervision of the canal commissioners, just what the defendant has undertaken to do by his contract.
Neither the contracting board, nor the canal commissioners, can be held to incur any liability for accidents or injuries to third persons, by reason of the failure of these contractors to perform their contracts. The servants of the sovereign thus contracting in their official capacity were never, in any way, liable upon such contracts, made within the scope of their authority, or for the wrongful acts or omissions of the persons with whom they contracted. The principle of respondeat superior never applied in such a case. (Broom’s Legal Maxims, 390, and cases there cited.) Nor is the sovereign, or state, liable in such a case; because negligence in the selection of an agent or servant cannot be imputed against the state.
The question then arises, whether the defendant can be held liable for the alleged injury, occasioned by his neglect or refusal to make the repairs, and to keep the tow-path of the canal in repair, according to his contract. He is not a public officer, but a mere individual contractor, whose obligations and duties all spring from the provisions of his contract, instead of the requirements of the statute or the common law.
There is iio doubt that a superintendent of repairs, charged with the same duty, and under the same obligation by virtue [173]*173of his office, would be held liable in a case like this. (Shepherd v. Lincoln, 17 Wend. 250. Adsit v. Brady, 4 Hill, 630.) But this is upon the ground of the legal duty he owed to the public, as a public officer. There is of course no privity of contract between the plaintiffs and the defendant, on which the liability of the latter to the former can be made to rest. And unless the defendant under his contract can be held to owe a legal duty to the public, to perform it, I do not see any ground upon which this action can be maintained.
I think no case can be found, nor am I aware of any principle \f law, which makes a mere contractor, though upon a public work, who is not a public officer, liable to third persons for damages occasioned by the non-performance of the obligations of his contract. There is a material and plain distinction between obligations or duties imposed by law, as upon public officers, and those created by contract merely. In regard to the former, they are created for the benefit of, and are due to, every one who has occasion for, or an interest in, their performance; and hence any one who sustains an injury which is personal to himself, and not common to all others, by means of their non-performance, or their improper performance, may maintain an action against him who owes the duty, to recover the damages thus sustained. But as to the latter, they rest between the contracting parties alone, and none but parties or privies can enforce them, or maintain an action to recover damages for a neglect or refusal to perform them. It is urged on behalf of the plaintiffs that this contract being one in regard to a public work, which is for certain purposes a public highway, and for keeping it, as such highway, in repair, is in the nature of a public obligation or duty, owing to every one lawfully using such highway; and that unless they can maintain this action they are remediless, as they have no right of action against the canal commissioners, or the contracting board, or the state. It may be that the plaintiffs are without remedy, if [174]*174this action fails; but that consequence would furnish us with no authority to change a well established rule of law.
[Monroe General Term,
September 1, 1862.
The character of the work contracted to be done, can never be held to change the character of the obligation of the contracting party. It is still private and personal, and not in any legal sense public and. official. I think no one would contend that the defendant could be indicted for neglecting to keep the canal, or the towing path, in repair, according to his contract.
The precise question here presented was decided in the case of Minard v. Mead, not reported,
It follows, therefore, that the demurrer was well taken, and was erroneously overruled at the special term.
The defendant must have judgment on the demurrer.
Johnson, Welles and J. C. Smith, Justices.]
The following is the case referred to:
Minard vs. Mead,
By the Court, Grover, J. The question involved in this case is one of much public importance, although the amount between the parties is inconsiderable. By chapter 327 of laws of 1854, the cfraal commissioners were required to let by contract to the lowest bidder the repairs upon three superintendents’ sections upon the Brie canal. The contractor is required to give adequate security for the performance of his contract. Further to secure such performance, fifteen per cent is to be retained from the monthly payments thereon until the expiration of the third month of the ensuing year, and provision is also made for declaring the contract abandoned, by the canal board, in case of failure to perform by the contractor; in which event the canal commissioner is to take charge of such sections, and make the repairs necessary to maintain navigation, in the manner required by law. By chapter 654 of laws of 1855, the canal commissioners are authorized to let by contract, under the provisions of the preceding act, the repairs upon any completed superintendent’s section on any of the canals of the state, under the [175]*175approval and directions of the canal board. The authorities establish the principle that when a franchise is conferred by the sovereign power upon a corporation or individual, in consideration of which such corporation or individual is required to perform certain duties, such corporation or individual is liable, in a civil action, to a party sustaining an injury peculiar to himself, from neglect of performance, The cases establishing this principle are cited . and reviewed in
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By the Court, Johnson, J.
The principle, respondeat superior, does not apply to a case like this, and affords no shield to the defendant. This is fully settled in the cases of Blake v. Ferris, (1 Seld. 48;) Pack v. The Mayor &c. of [172]*172New York, (4 id. 222;) and Kelly v. Same, (1 Kern. 432.) He is in no sense an agent or servant of any one, but is exercising an independent employment under an express and specific contract. This contract the statute authorizes the contracting board to make; which board is composed of the canal commissioners, the auditor of the canal department, and the state surveyor and engineer. It is part of the system adopted by the state for maintaining the public works, and keeping its property in repair. Formerly this was done through the machinery or agency of superintendents of repairs, who were public officers, charged by statute with the duty of doing, or causing to be done, under the general supervision of the canal commissioners, just what the defendant has undertaken to do by his contract.
Neither the contracting board, nor the canal commissioners, can be held to incur any liability for accidents or injuries to third persons, by reason of the failure of these contractors to perform their contracts. The servants of the sovereign thus contracting in their official capacity were never, in any way, liable upon such contracts, made within the scope of their authority, or for the wrongful acts or omissions of the persons with whom they contracted. The principle of respondeat superior never applied in such a case. (Broom’s Legal Maxims, 390, and cases there cited.) Nor is the sovereign, or state, liable in such a case; because negligence in the selection of an agent or servant cannot be imputed against the state.
The question then arises, whether the defendant can be held liable for the alleged injury, occasioned by his neglect or refusal to make the repairs, and to keep the tow-path of the canal in repair, according to his contract. He is not a public officer, but a mere individual contractor, whose obligations and duties all spring from the provisions of his contract, instead of the requirements of the statute or the common law.
There is iio doubt that a superintendent of repairs, charged with the same duty, and under the same obligation by virtue [173]*173of his office, would be held liable in a case like this. (Shepherd v. Lincoln, 17 Wend. 250. Adsit v. Brady, 4 Hill, 630.) But this is upon the ground of the legal duty he owed to the public, as a public officer. There is of course no privity of contract between the plaintiffs and the defendant, on which the liability of the latter to the former can be made to rest. And unless the defendant under his contract can be held to owe a legal duty to the public, to perform it, I do not see any ground upon which this action can be maintained.
I think no case can be found, nor am I aware of any principle \f law, which makes a mere contractor, though upon a public work, who is not a public officer, liable to third persons for damages occasioned by the non-performance of the obligations of his contract. There is a material and plain distinction between obligations or duties imposed by law, as upon public officers, and those created by contract merely. In regard to the former, they are created for the benefit of, and are due to, every one who has occasion for, or an interest in, their performance; and hence any one who sustains an injury which is personal to himself, and not common to all others, by means of their non-performance, or their improper performance, may maintain an action against him who owes the duty, to recover the damages thus sustained. But as to the latter, they rest between the contracting parties alone, and none but parties or privies can enforce them, or maintain an action to recover damages for a neglect or refusal to perform them. It is urged on behalf of the plaintiffs that this contract being one in regard to a public work, which is for certain purposes a public highway, and for keeping it, as such highway, in repair, is in the nature of a public obligation or duty, owing to every one lawfully using such highway; and that unless they can maintain this action they are remediless, as they have no right of action against the canal commissioners, or the contracting board, or the state. It may be that the plaintiffs are without remedy, if [174]*174this action fails; but that consequence would furnish us with no authority to change a well established rule of law.
[Monroe General Term,
September 1, 1862.
The character of the work contracted to be done, can never be held to change the character of the obligation of the contracting party. It is still private and personal, and not in any legal sense public and. official. I think no one would contend that the defendant could be indicted for neglecting to keep the canal, or the towing path, in repair, according to his contract.
The precise question here presented was decided in the case of Minard v. Mead, not reported,
It follows, therefore, that the demurrer was well taken, and was erroneously overruled at the special term.
The defendant must have judgment on the demurrer.
Johnson, Welles and J. C. Smith, Justices.]
The following is the case referred to:
Minard vs. Mead,
By the Court, Grover, J. The question involved in this case is one of much public importance, although the amount between the parties is inconsiderable. By chapter 327 of laws of 1854, the cfraal commissioners were required to let by contract to the lowest bidder the repairs upon three superintendents’ sections upon the Brie canal. The contractor is required to give adequate security for the performance of his contract. Further to secure such performance, fifteen per cent is to be retained from the monthly payments thereon until the expiration of the third month of the ensuing year, and provision is also made for declaring the contract abandoned, by the canal board, in case of failure to perform by the contractor; in which event the canal commissioner is to take charge of such sections, and make the repairs necessary to maintain navigation, in the manner required by law. By chapter 654 of laws of 1855, the canal commissioners are authorized to let by contract, under the provisions of the preceding act, the repairs upon any completed superintendent’s section on any of the canals of the state, under the [175]*175approval and directions of the canal board. The authorities establish the principle that when a franchise is conferred by the sovereign power upon a corporation or individual, in consideration of which such corporation or individual is required to perform certain duties, such corporation or individual is liable, in a civil action, to a party sustaining an injury peculiar to himself, from neglect of performance, The cases establishing this principle are cited . and reviewed in Conrad v. The Trustees of Ithaca, (16 N. Y. Rep. 158;) and in Weet v. The Trustees of Brockport, (Reporter's note to case, supra.) It is argued by the plaintiff’s counsel that a contractor for repairs upon the canal, pursuant to the statute, is also liable to an action at the suit of a party sustaining an injury peculiar to himself, in consequence of the neglect of such contractor to perform his contract. The absence of any precedent for such action is not conclusive, i^ the case comes fairly within the principle of adjudicated cases. If the action is sustained, it becomes important to determine upon what it is founded. If upon contract, the defendant cannot be imprisoned upon the judgment; if, upon a breach of duty enjoined by law, he can be so imprisoned. I am not aware of any cases holding that a,,contract entered into by an individual with the public, creates any higher legal duty of performanceithan if entered into with an individual; or that the breach is attended by any other consequence, unless such consequence is especially provided by statute. When the sovereign power enters into a contract, simply, without by law providing an additional security to enforce performance, resort can only be had, in case of breach, to the remedies prescribed by law available to other parties in like cases. Should it be held that such contracts create a duty analogous in its character to a duty enjoined by law upon corporations and individuals, the consideration for the performance of which was the grant of a franchise, it would follow that the breach of such contract could be punished by indictment. Such a proposition, I think, no one will attempt to maintain. Among the great number of misdemeanors existing at common law or created by statute, no mention is made of a failure to perform a contract with the public or sovereign power. The simple non-performance of a contract entered into in good faith with the public or any other party, was never the subject of criminal prosecution. In all cases where a duty of a public nature is positively enjoined by law upon a corporation or individual, failure to perform such duty is a misdemeanor. It follows, then, that this action cannot be maintained upon the ground of a failure to perform a public duty enjoined by law. The defendant has only been guilty of a breach of contract, and his person cannot be imprisoned upon any judgment recovered against him for such breach. Can this action be maintained upon the contract 1 The plaintiff is not a party thereto, and the general rule certainly is, that .actions upon contracts can only be maintained by the parties and their representatives, or, under the code, their assignees. It has never been the rule that more than one action could be maintained for a single broach of a contract. In this case an action can be maintained by the canal commissioners against the defendant and his bail, and the state was legally liable to the [176]*176plaintiff for the loss of his horse in consequence of the failure to repair the towing path. I cannot see why they might not recover, therefor; such want of repair being the direct and proximate cause of the loss. At all events the action could be maintained, and a recovery had for such damages as were sustained by the state consequent upon the defendant’s breach. I have not been able to find any case which, upon a careful analysis, countenances the idea that such a contract enures to the benefit of the entire community, thus enabling any one sustaining a peculiar injury to sustain an action for the breach. Yet that is precisely what is claimed by the plaintiff in this case. The position is, that any one entering into a contract with the public for the performance of any particular thing for a pecuniary compensation, becomes not only obligated to the public but to every member of community, and liable to a civil action, not only at the suit of the public, but of every individual sustaining a peculiar loss from a breach. This position is sought to be maintained by the reasoning of Judge Selden in Weet v. Trustees of Brockport. I have carefully examined the opinion of the learned judge in that case, and am„unable to discover any such doctrine. True, the reasons assigned for the decision of some of the cases discussed may appear to sustain it, but when taken in connection with the cases themselves, entirely fail, I think, to establish it. In Henley v. The Mayor and Burgesses of Lyme Regis, (6 Bing. 91,) it was held that an action lay against the borough of Lyme, to recover damages sustained from neglect to repair certain sea-banks. In that case it was said by Park, J. in giving the opinion of the court, that wherever an indictment lies for non-repair, an action on the case will lie at the suit of a party sustaining any.peculiar damage. This the learned judge supposes, in Weet v. Trustees of Brockport, is not quite correct, for the reason that, were it so, it would include public officers neglecting to perform official duties. He cites numerous cases showing that the latter do not fall'within that principle. He then endeavors to show that the true reason of the adjudication was the consideration received by the borough for the obligation imposed. With deference, I submit the consideration had nothing to do with the question. Had the borough received no grant of land from the crown, or other valuable consideration, for performing the duty, yet had that duty been positively enjoined by law, the defendant would have been equally liable to an indictment or action, for a failure to perform.
I understand the judge in Henley v. Mayor &c. of Lyme Regis, (supra,) as speaking not of officers but of corporations and individuals, upon whom duties of a public nature were imposed by law, as liable to the action in all cases when liable to an indictment, that is, when a legal duty of a public nature had been violated. The error, I think, consists in placing the decision upon the ground of an agreement, for a consideration, instead of a duty imposed by law, Officers other than those who perform duties for individuals for a compensation received from them, would not fall within the principle; not because they may be placed in this position against their will, or receive no compensation for their services, but for reasons of public policy, which requires that the per[177]*177formance of their duties should be enforced by the public authority, and that they should not be harassed by a multiplicity of actions by individuals. With deference I think such are the grounds pi their exemption, (if exempt, ar to which I give no opinion.) The whole class of cases holding municipal corporations liable to individuals for a failure to perform duties enjoined by law, depend upon the same principle. The legislature, designing to promote the welfare of a particular locality, incorporate the inhabitants, and confer upon such corporation certain franchises and impose certain duties. The idea of construing this exercise of sovereign power of legislation into a contract by which the corporation so created promises, in consideration of the franchises, to perform the duties, strikes me as more ingenious than substantial. It is true that in our government such corporations are not created, as a general rule, and duties imposed without the consent of the people immediately interested, but there is nothing in the way of the legislature so doing, I apprehend that it would scarcely be regarded as a defense to an indictment or action, that the charter prescribing the duty had been imposed upon the people against their unanimous wish; yet in such a case the law could hardly imply a promise to perform a duty. The same principle applies tp an indi; vidual to whom the franchise of a ferry, toll-bridge, or any other, is granted. The law, in all such cases, imposes a duty commensurate with the grant, and the grantee is liable to an individual for a special injury occasioned by nonperformance. It appears to me that this principle, and this alone, lies at the foundation of all the cases. Perhaps the case of Fielding v. Fay (Oro. Miz. 669) may be regarded as an exception. In that case it was held tfiat a cus; tom requiring a parson to keep a bull and a boar for the use of t|ie inhabit; ants of the parish was a good custom, and an action would lie against the parson by a parishioner for neglecting so to do. In another repqrt of the case if is said that the action lieth not, unless the plaintiff show a prescription for it and a consideration for such prescription, as that the parson had an increase of tithes. Row of this case it may be said that a prescription presupposes a grant or contract having a lawful origin, and that should any one contract witfi the inhabitants of a distinct to do any thing for their benefit severally in consideration of a several payment by them of a certain tithe or any thing else, I can see no difficulty in such inhabitants severally maintaining an action against him, and if the contract was with the inhabitants all jointly, no difficulty except as to the joinder of parties. Yeti think this does not at all tend to show that one who had contracted with the commissioners of highways to repair, and neglected to do any thing about it, would be liable to a party losing a horse for want of such repair; or that an army contractor who for a certain sum had agreed with the government to deliver flour at a fixed time and place would, in case of failure to perform, be liable to a soldier for an injury sustained from want of bread. Once adopt the principle contended for by the plaintiff and there is no limit to the liability of a contractor with the public. Better adhere to the ancient landmarks, and sustain the action only where the duty is imposed by law positive in its character; and if this includes public [178]*178officers, subject them to the liability, unless exempt therefrom on the ground of public policy, or by a course of judicial decisions that cannot be disturbed. In none of the cases that have fallen under my notice, where an action has been maintained by an individual, was there any contract with the public upon which an action could be maintained by the public. Upon reason and authority I think this action cannot be maintained, and that the judgment of nonsuit should be affirmed.
Hoyt, P. J. dissented.
[Erie General Term, September 3, 1860. Hoyt, Marvin, Davis and Grover, Justices.]