express agreement on her part to the contrary, be presumed to be on her separate account.' And by section 3" a married woman may sue and be sued in the same manner and to the same extent as if she were sole, but nothing herein contained shall authorize suits between husband and wife."

This enumeration of statutes shows the growth of the legislation on this particular subject, and the foregoing provisions are now embodied in a somewhat compressed form in Pub. Stat. chap. 147.

support his wife, and therefore was entitled to her services. By the statutes, which modify the common law, his right to her services is abridged, though his obligation to support her remains.

It is urged in argument that she may contract to devote her whole time to work which is to be performed away from his home, and which, perhaps, may require her absence for ten years, thus amounting to a desertion which would be in violation of her matrimonial duty. But the possibility of extreme cases should not By virtue of this legislation, a married wom-conclusively determine the construction of an becomes, in the view of the law, a distinct statutes, nor do we now decide whether the and independent person from her husband, statutes would permit such action on her part not only in respect to her right to own prop- against his consent. To a certain limited exerty, but also in respect to her right to use her tent-as, for example, in fixing the domicil, time for the purpose of earning money on her and in being responsible, under ordinary cir sole and separate account. She may perform cumstances, for its orderly management-the labor, and is entitled to her wages or earnings. husband is still the head of the family. But If she complies with the statutory require in some particulars a married woman is now ments as to recording a certificate, she may independent of her husband's control. In the carry on any trade or business on her sole and case now before us the impairment of the separate account, and take the profits, if profits plaintiff's capacity to labor was an element there are, as her separate property. Her right which might be considered by the jury in the to enter into contracts, to earn money, to en-estimate of her damages. In respect to this, gage in performing labor or service, to enter as with other elements of damages, no close into trade on her own account, is inconsistent approximation to mathematical accuracy can with the view that her capacity to labor be in all cases be reached. In some instances the longs exclusively to her husband. He can ap-right of a married woman to perform labor for propriate neither her earnings nor her time. others may have no money value. How much, Her right to employ her time for the earning if anything, should be allowed on this ground, of money on her own account is as complete must be left to the jury to determine, under as his, subject to the requirement of recording the circumstances of each particular case. The a certificate in case she enters into trade. This radical nature of the change effected by the may interfere with his right to and enjoyment legislation of this state in the legal condition of her society, companionship and services. of married women is illustrated in numerous But this is a consequence which the legislature decisions, of which Jordan v. Middlesez R. Co. must be deemed to have foreseen and intended. 138 Mass. 425, most nearly resembles the presHis right, in these respects, is now made sub-ent case. But see also Parker v. Simonds, 1 ordinate to her right to employ her time in the care and management of her property, and in the earning of money by performing labor or by carrying on a trade or business. So far as the statutes have given to her a right to act independently of him, so far his rights and control in respect to her are necessarily abridged. He can no longer compel her to work for him during such time as she may choose to perform labor on her sole and separate account. By the common law the husband was bound to

Allen, 258; Ames v. Foster, 3 Allen, 541; Plumer v. Lord, 5 Allen, 460; Chapman v. Foster, 6 Allen, 136; Stewart v. Jenkins, Id. 300; Chap man v. Briggs, 11 Allen, 546; Burke v. Cole, 97 Mass. 113; Snow v. Sheldon, 126 Mass. 332, 30 Am. Rep. 684; Read v. Stewart, 129 Mass. 407; Pacific Nat. Bank v. Windram, 133 Mass. 175; Butler v. Ives, 139 Mass. 202; Binney v. Globe Nut. Bank, 150 Mass. 574, 6 L. R. A. 379.

Exceptions sustained.

NEW YORK COURT OF APPEALS.

SPRINGFIELD FIRE & MARINE INSUR-
ANCE COMPANY, Respt.,

V.

Village of KEESEVILLE, Appt.

(148 N. Y. 46.)

1. A municipal corporation is not liable for damages caused by fire in conseNOTE. For liability for loss of property by fire because of failure of water supply, see note to Howsmon v. Trenton Water Co. (Mo.) 23 L. R. A. 146.

For water rates as taxes, see note to Wagner v. Rock Island (Ill.) 21 L. R. A. 519.

quence of its negligent failure to maintain suffi-
cient waterworks.

2. The maintenance of municipal wa-
terworks is in no sense a private busi-
ness for negligence in which the corporation
will be held liable, but is an exercise of govern-
mental power for the public good appertaining
to the corporation in its political character.
3. The imposition of water rents by a
municipal corporation for the use of wa-
ter does not show that the waterworks system is
operated by the corporation in its private cor-
porate character, but is only a mode of taxation
and part of the general scheme of raising reve
nue to carry on the work of government.

(December 19, 1895.)

APPEAL by defendant from an interlocu. the negligence and wrongful and unlawful

tory judgment of the General Term of the Supreme Court, Third Department, reversing a judgment of a Special Term for Essex County which sustained a demurrer to the complaint in an action brought to hold defendant liable for the amount which plaintiff had been compelled to pay by reason of the destruction of a house by fire in consequence of defendant's alleged negligence. Reversed.

Statement by Gray, J. :

"The

plaintiff's aforesaid loss of $4,450, to the extent of at least $4,150 was caused solely by acts of defendant in failing to keep its waterworks and fire appliances in proper working order, and in failing to employ competent men to manage and care for the same. complaint then demanded judgment for the said sum of $4,150. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. At special term the demurrer was Isustained and judgment went for the defendant, dismissing the complaint; but, upon appeal to the general term, that court reversed the judgment, and overruled the defendant's demurrer. From the general-term judgment the defendant has appealed to this court; the general term having certified the question as one of sufficient importance to render the decision of this court desirable before proceed

Messrs. McLaughlin & Rowe, for appel

liable (in the absence of a statute giving the remedy) for an injury arising from the negli gent use of its property from which it receives, in its corporate capacity, no special benefit; or from a negligent use of its property by its officers not acting as agents or servants of the corporation but as public officers whose duties are defined by law.

The complaint sets forth that the plaintiff is a Massachusetts corporation, and that the defendant is a village organized under the provisions of chapter 291 of the Laws of the state of New York, passed in 1870, and the amendments thereto; that the plaintiff carried on the business of fire insurance within the limits of the defendant, and for the priv-ing further. ilege of so doing, and of having the protection of the waterworks and fire department and appliances of defendant, had paid an an-lant: nual tax to the defendant; that the defendant A municipal corporation cannot be made had a system of waterworks and fire appliances which were maintained by taxes levied upon all its taxable inhabitants, including plaintiff and other insurance companies, and by water rents paid by such inhabitants. The complaint then proceeds to set forth the insurance by the plaintiff of property of one Emily E. Brewer, for a percentage less than for like property outside the limits of the Edgerly v. Concord, 62 N. H. 8; Thayer v. water and fire protection, and the destruction Boston, 19 Pick. 511, 31 Am. Dec. 157; Hafby fire thereof, in consequence whereof the ford v. New Bedford, 16 Gray, 297; Hill v. plaintiff had paid to her, under its contract Boston, 122 Mass. 344, 23 Am. Rep. 332; Barof insurance, $4,450. The complaint then bour v. Ellsworth, 67 Me. 294: Jewett v. New sets forth the assignment to plaintiff by Haven, 38 Conn. 368, 9 Am. Rep. 382; Grant Emily E. Brewer of all claims and damages v. Erie, 69 Pa. 420, 8 Am. Rep. 272; Davis v. against the defendant, by reason of said fire Montgomery, 51 Ala. 139, 23 Am. Rep. 545; and damages, and alleges that "at the time Cooley, Torts, 620, 621; 2 Dill. Mun. Corp. of the aforesaid fire, the defendant had wrong-ES 949-951, 953-955; Woolbridge v. New York, fully and negligently allowed and caused its said waterworks, pumps, pipes, and fire appliances to become and be out of repair, broken and weakened, stopped with mud and other foreign objects, and unfit for use, to such extent that water could not be thrown or put upon said dwelling house to extinguish the fire therein; that when the hose was Taid and opened, and ready to throw water upon the fire in said house, said fire was very slight, and had done very little damage; that if said fire appliances and waterworks had been in proper working order, said fire would and could have been extinguished without damaging said house to exceed $300; that at the time of said fire, and for several years previous thereto, the defendant, under and in pursuance of the powers granted it by the laws of the state of New York, had assumed to maintain waterworks and fire appliances and a fire department for the purpose, among other things, of protecting the property of the inhabitants of defendant against loss by fire, of all which plaintiff and its assignor had notice, and in reliance thereon said assignor paid taxes to defendant to maintain the same, and plaintiff paid taxes to defend ant for said purpose, and insured property at reduced rates as aforesaid;

that

49 How. Pr. 67; Smith v. Rochester, 76 N. Y. 506; Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; O'Meara v. New York, 1 Daly, 425; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760.

It was discretionary with the defendant whether it would construct a system of waterworks, and having constructed it, whether it would maintain it or allow it to fall into disuse.

Wainwright v. Queens County Water Co. 78 Hun, 152; Mendel v. Wheeling, 28 W. Va. 233; Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 68; Vanhorn v. Des Moines, 63 Iowa, 447, 50 Am. Rep. 750; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Tainter v. Worcester, 123 Mass. 311, 25 Am. Rep. 90; Edgerly v. Concord, 62 N. H. 8; Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382; Torbush v. Norwich, 38 Conn. 225, 9 Am. Rep. 395; Grant v. Erie, 69 Pa. 420, 8 Am. Rep. 272; Black v. Columbia, 19 S. C. 412, 45 Am. Rep. 785; Heller v. Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Kelley v. Milwaukee, 18 Wis. 83; Davis v. Montgomery, 51 Ala. 139, 23 Am. Rep. 545; Faulkner v. Aurora, 85 Ind. 130; Howard v. San Francisco, 51 Cal. 52; Wilcox v. Chicago, 107 Ill. 334, 47 Am. Rep. 434; Smith v. Roch

ester, 76 N. Y. 513; Welsh v. Rutland, 58 Vt. | der no obligation, originally, to provide water228, 48 Am. Rep. 762; 2 Dill. Mun. Corp. 3d works for the protection of its inhabitants and ed. 976; Shearm. & Redf. Neg. 4th ed. § 265. | others against fire, yet, having assumed to exWater companies which contract with the ercise its legal right so to do, it became bound public authorities to furnish water sufficient not to act negligently in the care and mainin quantity and pressure to extinguish fires are tenance of the same, and not to employ innot liable to property owners for damages re- competent servants. sulting from failure to keep their contract.

22 Alb. L. J. 124; House v. Houston Waterworks Co. (Tex.) 22 S. W. 277; Davis v. Clinton | Waterworks Co. 54 Iowa, 59, 37 Am. Rep. 185; Becker v. Keokuk Waterworks, 79 Iowa, 419; Fowler v. Athens City Waterworks Co. 83 Ga. 219; Foster v. Lookout Waterworks Co. 3 Lea, 42; Ferris v. Carson Water Co. 16 Nev. 44, 40 Am. Rep. 485; Nickerson v. Bridgeport Hydraulic Co. 46 Conn. 24, 33 Am. Rep. 1: Eaton v. Fairbury Waterworks Co. 37 Neb. 546, 21 L. R. A. 653; Howsmon v. Trenton Water Co. 119 Mo. 304, 23 L. R. A. 146.

Mr. A. W. Boynton, for respondent: To establish a defense based on exemption from liability for damages resulting from its own wrong, defendant must invoke and show law that is irresistibly clear to that end.

United States v. Fisher, 6 U. S. 2 Cranch, 358, 2 L. ed. 304; Cogswell v. New York, N. H. & H. R. Co. 103 N. Y. 10; Bohan v. Port Jervis Gaslight Co. 122 N. Y. 18, 9 L. R. A.

The defendant had authority of law to maintain waterworks for protection against fire, and to sell water from them, etc.

Laws 1875, chap. 181, § 4; Laws 1879, chap. 129, as amended by Laws 1881, chap. 175, and Laws 1883, chap. 225; Laws 1885, chap. 211. It cannot justly be held that defendant was exercising its sovereign, or judicial, or discretionary powers, wherein it escapes all liability through deference to the ancient fiction that, "the King can do no wrong."

Lloyd v. New York, 5 N. Y. 374, 55 Am. Dec. 347; Beach, Pub. Corp. § 1140.

The powers granted to defendant imply the duty on the part of defendant to execute the powers; because the interests of the public and third persons are at stake.

Hutson v. New York, 9 N. Y. 163, 59 Am. Dec. 526; Requa v. Rochester, 45 N. Y. 129, 6 Am. Rep. 52; New York v. Furze, 3 Hill, 612; People v. Meakim, 133 N. Y. 214; People v. Otsego County Suprs. 51 N. Y. 401; People v. Livingston County Suprs. 68 N. Y. 114; Hagadorn v. Raux, 72 N. Y. 583; People v. Niagara County Suprs. 49 Hun, 32; Gilmore v. Utica, 121 N. Y. 568; Rex v. Barlow, 2 Salk. 609; Cooley, Const. Lim. pp. 248, 249: Nelson v. New York, 63 N. Y. 544; Kramrath v. Albany, 127 N. Y. 581; Hill v. New York, 139 N. Y. 505.

McCarthy v. Syracuse, 46 N. Y. 196; Danaher v. Brooklyn, 119 N. Y. 253, 7 L. R. A. 592; Rochester White Lead Co. v. Rochester, 3 N. Y. 463. 53 Am. Dec. 316; Hutson v. New York, 9 N. Y. 163, 59 Am. Dec. 526: Conrad v. Ithaca, 16 N. Y. 158; Barton v. Syracuse, 37 Barb. 292; Hitchins v. Frostburg, 68 Md. 100; Seifert v. Brooklyn, 101 N. Y. 136, 54 Am. Rep. 664; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352. See opinion of Finch, J., in Cain v. Syracuse, 95 N. Y. 87; Jenney v. Brooklyn, 120 N. Y. 167.

The courts have held municipal corporations liable for neglect to maintain public works in good repair.

Moody v. New York, 43 Barb. 282; Hyatt v. Rondout, 44 Barb. 385; Barton v. Syracuse, 36 N. Y. 54; Davenport v. Ruckman, 37 N. Y. 568; Wessman v. Brooklyn, 40 N. Y. S. R. 700. Employment of incompetent servants to care for public works is negligence.

Lloyd v. New York, 5 N. Y. 371, 55 Am. Dec. 347.

The defendant, by accepting its organization and powers from the state, thereby becomes bound to the state to exercise those powers and the duties arising therefrom without negligence.

Conrad v. Ithaca, 16 N. Y. 158; Nelson v. Canisteo, 100 N. Y. 89; Cain v. Syracuse, 95 N. Y. 83.

And third parties may have their action for damages arising from neglect of defendant to perform those duties.

Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Johnson v. Belden, 47 N. Y. 130; Little v. Banks, 85 N. Y. 263.

The true rule for the government of this case is, that the wrongdoer is liable in every instance for the damages that he causes by his negligence.

Stock v. Boston, 149 Mass. 410; Ehrgott v. New York, 96 N. Y. 281, 48 Am. Rep. 622; Ring v. Cohoes, 77 N. Y. 83, 33 Am. Rep. 574.

The contention of the defendant that to hold a municipal corporation liable in a case like this might be disastrous financially, cannot be considered serious argument or entitled to have weight.

Beltz v. Yonkers, 74 Hun, 75.

Gray, J., delivered the opinion of the court:

The learned justice who spoke for the general term, in a very elaborate and interesting opinion, proceeded, very correctly, as think, upon the assumption that the negligence charged against the defendant in the complaint related entirely to its waterworks system. In the view which we take of the matter, it is of comparatively little consequence whether the plaintiff bases its right of action upon negligence with respect to the fire department as such, or to the water departEven if we grant that the defendant was unment as such. But the fair reading of the

complaint undoubtedly warrants the assump- | Bailey v. New York, 3 Hill, 531; Lloyd v. tion of the learned justice at general term. New York, 5 N. Y. 369, 55 Am. Dec. 347; If I correctly apprehend the reasoning which and Maxmilian v. New York, 62 N. Y. 160, led the general term to the conclusion that 20 Am. Rep. 468. The opinion in Darlingthere was a municipal liability upon an ad- ton v. New York, 31 N. Y. 164, 88 Am. Dec. mission of the facts set forth in the com- 248, is also instructive upon the subject plaint, it rests, in the main, upon two the When we find that the power conferred has ories. In the first place, it is held that, by relation to public purposes and is for the pubthe voluntary assumption on the part of the lic good, it is to be classified as governmental defendant of the power conferred by statute in its nature, and it appertains to the corto construct and maintain waterworks, it be- poration in its political character. But when came responsible for the proper exercise of it relates to the accomplishment of private such power, and that such responsibility is corporate purposes, in which the public is necessarily demanded in the interest of an only indirectly concerned, it is private in its efficient public service, and the inhabitants, nature and the municipal corporation, in who have contributed to the maintenance of respect to its exercise, is regarded as a legal such a public work, have a right to hold the individual. In the former case, the corporadefendant to the exercise of reasonable care tion is exempt from all liability, whether for and diligence and to a liability for a failure nonuser or misuser; while in the latter case, to do so. In the next place it is held, while it may be held to that degree of responsibilnot deeming that the defendant had engaged ity which would attach to an ordinary private in a private corporate business, conducted corporation. Then the investiture of mufor its own benefit, and not for the general nicipal corporations by the legislature with public, nevertheless that the defendant hav-administrative powers may be of two kinds. ing agreed to erect and take charge of the It may confer powers, and enjoin their perpublic work and enterprise for the public within its boundaries, if there is a failure to exercise reasonable care and diligence in maintaining it, there has been a breach of an implied contract, for which, if injury results, an action will lie. Holding these views, the learned general term felt compelled, because of the admission by the defendant, through its demurrer, of the allegations of wrongful and neglectful conduct in relation to the maintenance of its waterworks, to hold that the plaintiff made out a good cause of action.

So,

formance upon the corporation as a duty; or it may create new powers, to be exercised as governmental adjuncts, and make their assumption optional with the 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 neg lect, the corporation will be held responsible. New York v. Furze, 3 Hill, 612, 619. in McCarthy v. Syracuse, 46 N. Y. 194, it was held that, where a duty of a ministerial character is imposed by law upon the corThe proposition that such a liability rests poration, a negligent omission to perform upon a municipal corporation, as is asserted that duty creates a liability for damages here, is somewhat startling, and I think the sustained. Such responsibility, however, learned general term justices have misappre- would not attach to the corporation where it hended the nature of the responsibility which has voluntarily assumed powers authorized devolved upon the defendant in connection by the legislature under some general prowith its maintenance of a waterworks system, vision respecting municipalities throughout as well as the character of the power which the state, and permissive in their nature; and it was authorized to exercise in relation at this point I touch one of the theories upon thereto. I might remark, in the same spirit which the general term decision seems to of criticism which was assumed by the rest. In such a case-and I speak, of course, learned justice at general term, that while of legislative acts which are general in their the efficiency of the public service would be nature and scope-the assumption by the promoted by holding municipal corporations municipal corporation is of a further functo the exercise of reasonable care and dili- tion of self, or local, government, and such gence in the performance of municipal du- a power is discretionary in its exercise and ties, and to a liability for injury resulting carries with it no consequent liability for from a failure in such exercise, the applica- nonuser or misuser. In the legislature reside tion of that doctrine to such a case as this the power and force of government, confided might, and probably would, be highly dis- to it by the people under constitutional reastrous to municipal governments. A little strictions. In the creation of municipal correflection will show that a multitude of ac-poratious, subordinate commonwealths are tions would be encouraged, by fire insurance companies, as by individuals, and that cases have arisen, and may still arise, where an extensive conflagration might bankrupt the municipality, if it could be rendered liable for the damages or losses sustained. The distinction between the public and private powers conferred upon municipal corporations, although the line of demarcation at times may be difficult to ascertain, is generally clear enough. It has been frequently the subject of judicial discussion, and, among the numerous cases, it is sufficient to refer to

made, upon which certain limited and prescribed political powers are conferred and which enjoy the benefits of local self govern. ment. People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. When, in addition to those general powers which are prescribed upon the creation of a municipal corporation, general statutes permit the assumption of further powers as a means of benefiting the portion of the public in the particular locality, they invest the corporation availing itself of the permission with just so much more governmental power. Just as the general powers

deposited with the various municipalities are | collated a great number of decisions, by the exercised by them in a quasi sovereign capacity, so would any added powers designed for the general public good, though optional with the corporation as to their assumption, and in their exercise and performance local, be exercised. They are not special, as being designed for and granted to a particular municipality; for they are applicable to every part of the body politic where municipal government exists. Such powers, in legal contemplation, appertain to the municipal corporation as such, and may be adopted as a part of the governmental system.