76 N.Y. 329, Weed v. Village of Ballston Spa

Citation:76 N.Y. 329
Party Name:LEVI WEED, Respondent, v. THE VILLAGE OF BALLSTON SPA, Appellant.
Case Date:March 18, 1879
Court:New York Court of Appeals

Page 329

76 N.Y. 329

LEVI WEED, Respondent,

v.

THE VILLAGE OF BALLSTON SPA, Appellant.

New York Court of Appeal

March 18, 1879

Argued Feb. 5, 1879.

Page 330

COUNSEL

Matthew Hale, for appellant. No negligence was proved on the part of defendant. (Sparhawk v. City of Salem, 1 All., 30, 32; Macomber v. City of Taunton, 100 Mass., 255; Randall v. East. R. R. Co., 106 Id., 276; Smith v. Mayor, 66 N.Y. 295; City of Buffalo v. Holloway, 3 Seld., 493; Deyo v. N.Y. C. R. R. R., 34 N.Y. 9; Padden v. N.Y. C. R. R., 44 Id., 478; 2 Hill on Torts [3d ed.], 387, 388; Hull v. Richmond, 2 Wood & M., 337.) The absence of necessary funds, or the legal means of procuring them, excused defendant from the duty of repairing. (Hines v. City of Lockport, 50 N.Y. 238, 239; Lamont v. Haight, 44 How. Pr., 1.) The power of defendant's trustees over highways is so restricted that a very restricted rule of liability should be applied in a case of this kind. Harrington v. Village of Corning,

Page 331

51 Barb., 396; Huston v. Mayor, 5 Seld., 163; Davenport v. Ruckman, 37 N.Y. 568; Requa v. City of Rochester, 45 Id., 129, 133-134; Diveny v. City of Elmira, 51 Id., 506, 513; Charter Laws 1864, chap. 139; Hines v. City of Lockport, 60 Barb., 378, 386.)When a charter does not impose a well defined and unrestrained duty, and when the corporation does not have funds, or a certain legal means of obtaining them, it is not liable. (Huston v. Mayor, 5 Seld., 163, 170; Smith v. Wright, 27 Barb., 621, 630; Cole v. Trustees of Medina, 27 Barb., 218; Peck v. Village of Batavia, 22 Id., 634; Haskell v. Village of Penn Yan, 5 Lans., 44; Herrington v. Village of Corning, 51 Barb., 396.) The power of assessment and commutation for highway labor in a village charter is not such a means of raising funds as would create a liability. (Hines v. City of Lockport, 50 N.Y. 236; 60 Barb., 378; Hover v. Barkhoof, 44 N.Y. 113; Robinson v. Chamberlain, 34 Id., 389; Garlinghuce v. Jacobs, 29 Id., 297; Lament v. Haight, 44 How. Pr., 1, 5.) Actual notice to a trustee or director of a corporation is not notice to the latter. (Requa v. City of Rochester, 45 N.Y. 129; Nat. Bk. v. Horton, 1 Hill, 572; Bk. U.S. v. Davis, 2 Id., 451.) Constructive notice from lapse of time cannot be based on less than two or three weeks. (Mayor v. Sheffield, 4 Wall., 189; Todd v. City of Troy, 61 N.Y. 516; Divney v. City of Elmira, 51 Id., 506; Hutson v. Mayor, 5 Seld., 163; Griffin v. Mayor, Id., 456. Davenport v. Ruckman, 37 N.Y., 568.)

L. B. Pike, for respondent. Defendant, having permitted the highway to remain out of repair after actual and constructive notice, was liable for all damages to one lawfully traveling upon it who was free from negligence. (Hickock v. Village of Plattsburgh, 16 N.Y. 161; Wendell v. City of Troy, 4 Keyes, 272; Davenport v. Ruckman, 37 N.Y. 568; Divney v. City of Elmira, 51 Id., 506, 542; Hudson v. Mayor, 5 Seld., 163; Storrs v. City of Utica, 3 Smith, 104;

Page 332

Requa v. City of Rochester, 45 N.Y. 129; Masterton v. Village of Mt. Vernon, 58 Id., 391; 37 Barb., 292; 44 Id., 385; 41 Id., 381; 50 Id., 358; 3 N.Y.S. Ct., 504.)Neglect to keep proper lights and guards, at night, around the excavation was sufficient to charge defendant. (Storrs v. City of Utica, 3 Smith, 104.) It was immaterial whether defendant had money or not, with which to keep the street in repair. (...

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81 practice notes
  • 135 P. 850 (Idaho 1913), Baillie v. City of Wallace
    • United States
    • Idaho Supreme Court of Idaho
    • October 2, 1913
    ...of Winston, 157 N.C. 252, 72 S.E. 966; Kunz v. City of Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Weed v. Village of Ballston Spa, 76 N.Y. 329, 330; Schroth v. City of Prescott, 68 Wis. 678, 32 N.W. 621; Fortin v. East Hampton, 145 Mass. 196, 13 N.E. 599; City of Covington v. Johnson......
  • 125 P. 420 (Mont. 1912), Smith v. Zimmer
    • United States
    • Montana Supreme Court of Montana
    • March 4, 1912
    ...therein into which they would take him, in other words, that the public officers had done their duty. Weed v. Village of Ballston Spa, 76 N.Y. 329. And, when the wagon was overturned into the water and his foot became fastened, it was but natural that in his fright and anxiety for his own s......
  • 104 N.Y. 459, Pomfrey v. Village of Saratoga Springs
    • United States
    • New York New York Court of Appeals
    • March 1, 1887
    ...that the defendant had not; it was his duty to report to the trustees if he had not. (Charter, § 39; Weed v. Village of Ballston Spa, 76 N.Y. 335.) The corporation defendant had constructive notice, at least, of the condition of the sidewalk. Constructive notice was sufficient. ( Requa v. C......
  • 147 N.Y. 657, Wakeman v. Wilbur
    • United States
    • New York New York Court of Appeals
    • December 10, 1895
    ...(2 R. S. 1214, § 6; 2 R. S. 1216, § 16; Laws of 1869, chap. 593; Robinson v. Chamberlain, 34 N.Y. 389; Weed v. Village of Ballston Spa, 76 N.Y. 329.) The plaintiff had ample remedies outside an injunction for all the evils of which he complains, and, therefore, equity will not assist him. (......
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81 cases
  • 135 P. 850 (Idaho 1913), Baillie v. City of Wallace
    • United States
    • Idaho Supreme Court of Idaho
    • October 2, 1913
    ...of Winston, 157 N.C. 252, 72 S.E. 966; Kunz v. City of Troy, 104 N.Y. 344, 58 Am. Rep. 508, 10 N.E. 442; Weed v. Village of Ballston Spa, 76 N.Y. 329, 330; Schroth v. City of Prescott, 68 Wis. 678, 32 N.W. 621; Fortin v. East Hampton, 145 Mass. 196, 13 N.E. 599; City of Covington v. Johnson......
  • 125 P. 420 (Mont. 1912), Smith v. Zimmer
    • United States
    • Montana Supreme Court of Montana
    • March 4, 1912
    ...therein into which they would take him, in other words, that the public officers had done their duty. Weed v. Village of Ballston Spa, 76 N.Y. 329. And, when the wagon was overturned into the water and his foot became fastened, it was but natural that in his fright and anxiety for his own s......
  • 104 N.Y. 459, Pomfrey v. Village of Saratoga Springs
    • United States
    • New York New York Court of Appeals
    • March 1, 1887
    ...that the defendant had not; it was his duty to report to the trustees if he had not. (Charter, § 39; Weed v. Village of Ballston Spa, 76 N.Y. 335.) The corporation defendant had constructive notice, at least, of the condition of the sidewalk. Constructive notice was sufficient. ( Requa v. C......
  • 147 N.Y. 657, Wakeman v. Wilbur
    • United States
    • New York New York Court of Appeals
    • December 10, 1895
    ...(2 R. S. 1214, § 6; 2 R. S. 1216, § 16; Laws of 1869, chap. 593; Robinson v. Chamberlain, 34 N.Y. 389; Weed v. Village of Ballston Spa, 76 N.Y. 329.) The plaintiff had ample remedies outside an injunction for all the evils of which he complains, and, therefore, equity will not assist him. (......
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