Pomfrey v. Village of Saratoga Springs

• Decision Date: 01 March 1887
• Citation: 104 N.Y. 459,11 N.E. 43
• Parties: POMFREY v. VILLAGE OF SARATOGA SPRINGS.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 459

11 N.E. 43

POMFREY

v.VILLAGE OF SARATOGA SPRINGS.¹

Court of Appeals of New York.

March 1, 1887.

Appeal from general term supreme court, Third department.

Action to recover for personal injuries received by plaintiff by a fall on a sidewalk.

The following is an extract from the auditors' law, (chapter 517 of the Laws of 1875,) referred to in the opinion: ‘Their first duty shall be to thoroughly examine and investigate all claims and accounts against said village embraced in the floating debt thereof, and to audit and allow so much of the same as is just and equitable. They shall also, in like manner, investigate and audit all future claims and demands of every name and nature that may arise or be created against said village, including those contracted or authorized by the board of education and board of water commissioners of said village, as well as the board of trustees and other officers thereof. Such claims must be certified to by the board or such member thereof, or other village officer, as incurred the indebtedness, which certificate shall state the specific service or nature of the expenditure thus authorized, and be verified by the affidavit of the claimant, wherein shall be stated the time when the services were rendered or material was furnished, together with the amount, and that the prices charged in such claim for such material or services are not in excess of the customary rates demanded of those paying cash for similar goods or material or service. Such auditors shall have power to administer oaths to claimants, and to persons and witnesses produced in reference to such claims; and, in pursuing investigations relative to the integrity of the claims presented for their audit, they may compel the attendance of witnesses before them, with such books and papers as they deem to be necessary for their comprehension of the matter under consideration; and, until such claims are presented to and acted upon by said auditors, no suit or action in law can be maintained thereon.’

Plaintiff had judgment below.

Chas. S. Lester, for appellant.

L. B. Pike and chas. M. Davison, for repondent.

EARL, J.

The plaintiff commenced this action to recover damages for injuries received by her from falling upon one of the sidewalks in the village of Saratoga Springs, on the ninth day of January, 1883. At that time, snow and ice had accumulated upon the sidewalk on the southerly side of Lake avenue, opposite the premises of one Andrews, until the embankment was about three feet thick above the surface of the ground, and two and one-half feet thick above the snow upon the sidewalk easterly and westerly of the promises mentioned. While she was passing along the sidewalk over this embankment she slipped down, and received the serious injuries of which she complains. This snow and ice had fallen from time to time from the roof of a barn standing near the sidewalk, and had been there for at least two weeks.

Under its charter (chapter 220, Laws 1866) the village of Saratoga Springs is constituted a separate road-district, exempt from the superintendence and care of the commissioners of highways of the town of Saratoga Springs, and the trustees are constituted and declared to be the commissioners of the village. They are authorized to appoint a superintendent, who is to have the care and supervision of the streets and sidewalks of the village, subject to their general control and direction. They are empowered, and it is made their duty, to establish such ordinances, by-laws, and regulations as they may think proper and reasonable; among other things to establish the grade of the streets and sidewalks, to provide for and regulate the paving, repairing, and improving streets and sidewalks, and the cleaning of streets and sidewalks as often as may be necessary; and ample power is conferred upon the village and its trustees to raise money for the purpose of discharging the duties and obligations thus imposed upon it in reference to its streets and sidewalks.

That, under such a charter, it was the duty of the defendant to keep its streets and sidewalks in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons, without fault on their part receiving injuries upon its streets, has been settled by many decisions in this state, and is no longer open to question. Conrad v. Village of Ithaca, 16 N. Y. 158;Requa v. City of Rochester, 45 N. Y. 129;Hines v. City of Lockport, 50 N. Y. 236;Todd v. City of Troy, 61 N. Y. 506;Evans v. City of Utica, 69 N. Y. 166;Weed v. Ballston Spa, 76 N. Y. 329;Saulsbury v. City of Ithaca, 94 N. Y. 27;Dubois v. City of Kingston, 102 N. Y. 219, 6 N. E. Rep. 273. The rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages and to cities, and the same principles which impose liability upon the one class of corporations impose it upon the other. If the municipal authorities have actual notice of a dangerous defect in a street, then it is their duty, without unreasonable delay, to repair it. They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them. So, in this case, if all the other conditions existed for imposing liability upon the defendant, it is not claimed that the facts of the case were not such that the jury could find that the defendant had, or ought to have had, notice of the dangerous condition of this sidewalk.

But the defendant seeks to escape liability upon various grounds which will be separately noticed.

1. It is claimed that the place where the plaintiff was injured, although used by the public, was not in fact a public street or sidewalk over which the defendant had jurisdiction. But it is undisputed that this street had been open to its full width for about 40 years; that it was one of the principal streets of the village, extensively used by the public; that the sidewalk had been laid out and used during all of that time; that water-mains had been laid through the street; that the village had assumed jurisdiction over it; and that curb-stones had been placed along the sidewalks at the expense of the village. We think that there was abundant evidence from which the jury could properly find that this street, for its whole width, had been dedicated to and accepted by the public, and that it was legally and lawfully one of the streets of the village. Cook v. Harris, 61 N. Y. 448;People v. Loehfelm, 102 N. Y. 1, 5 N. E. Rep. 783.

2. It appears sufficiently that the defendant either had the means to clear this sidewalk of the accumulation of ice and snow, or the ability to raise the means. By section 38 of the village charter it is made the duty of the village superintendent, in the month of April of each year, to report in writing to the board of trustees the general condition of ‘the streets, bridges, culverts, sidewalks, lanes, and alleys, with estimates of the probable expense to put them in good repair. He shall also, within 10 days prior to each annual village election, report in writing to the board of trustees the condition of the streets, bridges, culverts, sidewalks, lanes, and alleys, with the probable amount necessary to keep them all in good order during the coming year.’ Section 39 provides that whenever ‘any repairs shall be necessary on any public street, bridge, culvert, sidewalk, lane, or alley in said village, the village superintendent shall attend to such repairs; and, when there are no funds in his hands to make such...