Augustine v. Town of Brant

• Decision Date: 20 November 1928
• Citation: 249 N.Y. 198,163 N.E. 732
• Parties: AUGUSTINE v. TOWN OF BRANT.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 198

163 N.E. 732

AUGUSTINE

v.TOWN OF BRANT.

Court of Appeals of New York.

Nov. 20, 1928.

Action by William F. Augustine, as administrator of the estate of John B. Augustine, against the Town of Brant. Judgment for plaintiff (131 Misc. Rep. 555, 227 N. Y. S. 305) was reversed by the Appellate Division, Fourth Department, and the complaint dismissed (224 App. Div. 290, 230 N. Y. S. 43), and plaintiff appeals.

Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Dana L. Spring, of Buffalo, for appellant.

W. H. Ticknor, of Buffalo, for respondent.

POUND, J.

This is an action brought by the plaintiff against the town of Brant, Erie county, to recover damages for the death of his intestate by drowning, by reason of the negligent act of defendant in maintaining a public park and bathing beach on the shore of Lake Erie without giving warning of its dangerous character, and without providing proper means of protecting the safety of the bathers. The question is as to the liability of the town, as town, not as to the negligence of its servants and agents, or as to the freedom of the deceased from contributory negligence. It is contended that the town is not liable (a) because maintenance of the park was an ultra vires act; and (b) because the maintenance of town parks according to law is the exercise of a governmental function.

The authority of a town to acquire lands for the purpose of establishing thereon a public park or playground and to equip the same with suitable buildings, structures, and apparatus is contained in Town Law (Consol. Laws, c. 62), art. 17-A. The town board may establish public parks and playgrounds ‘when authorized by a special meeting of the taxpayers therein.’ Section 342. No vote was had on the question whether the town board should be authorized to purchase the land in question for park purposes or to equip the same as provided in the Town Law. The town board leased the land without authority. But the town in fact holds a longterm lease or leases of the park or pleasure grounds. ‘The town board is authorized to provide for the care and maintenance of such parks and playgrounds and for the improvement thereof, and the cost thereof shall be a town charge.’ Town Law, § 346. ‘Such parks and playgrounds shall be under the care and control of the town board, and the town board may adopt * * * rules and regulations for the use of such public parks and playgrounds.’ Town Law, § 347.

The town board had for some 11 years maintained the place as a public park. It had constructed bathhouses. It had fixed a charge for out-of-town people of 50 cents for each automobile entering the park. The Appellate Division (224 App. Div. 290, 230 N. Y. S. 43) has held that, because the land was not acquired under the provisions of the Town Law cited above, the town was not maintaining the park, and was not liable for the negligence of the town board in relation thereto.

The want of original authority to establish the park is not to be received as conclusive evidence that the town did not maintain it. Municipal corporations are not wholly exempt from liability for wrongful acts done with all the evidences of being acts of the corporation to the injury of others. Salt Lake City v. Hollister, 118 U. S. 256, 6 S. Ct. 1055, 30 L. Ed. 176;Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. The town had the power, under the provisions of the Town Law, to establish a park. It held itself out to the public, through the action of the town board, as maintaining one. Plaintiff's intestate came there as one of the public in good faith and with no means of protecting himself by scrutinizing the corporate powers of the town and the manner in which they had been exercised.

By what good reason may the town avail itself of the defense of ultra vires? It is said that public officers are without power to contract except as directed by statute. Wells v. Town of Salina, 119 N. Y. 280, 23 N. E. 870,7 L. R. A. 759;Brown v. Ward, 246 N. Y. 400, 159 N. E. 184. When one contracts with a municipal corporation he must examine the public law and determine for himself the powers conferred upon it. He deals on terms of equality with the municipality. A pleasure seeker cannot be expected to examine the law and the proceedings of the town board thereunder before he avails himself of the privileges held out to him. The distinction between contract liability and tort liability may readily be made,

If the negligent acts are ultra vires in such a sense as to be wholly without the scope of the corporate powers of the municipality, the municipality is not answerable for the consequences resulting from them, although the persons causing the work to be done were its officers and agents, and assuming to act as such in doing it. City of Albany v. Cunliff, 2 N. Y. 165; Stoddard v. Village of Saratoga Springs, supra. But ultra vires is not in all times and places a defense to tort actions against a municipality. Otherwise a municipal corporation could never be held liable in tort, for no municipal corporation is authorized to do wrongful acts. It was legitimately within the corporate power of defendant to establish and maintain parks in accordance with the statute. It went beyond its powers in acquiring and equipping the park lands, but it was not wholly without its powers in maintaining them after they had been acquired. They might have been acquired by gift or by dedication. Could it be argued that lands thus acquired could not be maintained by the town? A narrow and literal construction of the statute might limit the right to maintain parks and playgrounds to ‘such parks and playgrounds' as had been acquired pursuant to the statute, but we have no difficulty in reaching the conclusion that irregularity in acquiring title should not relieve the town from its duty of using due care in the management of the park. It is of no concern to the public how the lands were acquired so long as the town was exercising its corporate functions in maintaining them. No just view of municipal exemption from the consequence of unauthorized and wrongful acts of the governing body should exempt the town from liability in this case. Speir v. City of Brooklyn, 139 N. Y. 6, 13,34 N. E. 727,21 L. R. A. 641, 36 Am. St. Rep. 664.

Was the act of the town in maintaining the park done in the discharge of a governmental duty? Did the town, in maintaining the park, act as the agent of the state, for the benefit of the people of the state, so that the rule of nonliability for negligence may be applied? Or did it perform mere quasi private duties for the peculiar advantage of the municipality and its inhabitants in the discharge of which it is held responsible for its negligent acts? Is the power governmental and public, or proprietary and private? The distinction is pointed out in Wilcox v. City of Rochester, 190 N. Y. 137, 82 N. E. 1119,17 L. R. A. (N. S.) 741,13 Ann. Cas. 759, and like cases. The proper application of the test may at times be difficult. The...