Bieling v. City of Brooklyn

• Decision Date: 15 April 1890
• Citation: 24 N.E. 389,120 N.Y. 98
• Parties: BIELING v. CITY OF BROOKLYN et al.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 98

24 N.E. 389

BIELING

v.CITY OF BROOKLYN et al.

Court of Appeals of New York,

Second Division.

April 15, 1890.

Appeal from city court of Brooklyn, general term.

Action by Amelia T. Bieling against the city of Brooklyn and Ripley Ropes, commissioner of the department of city works. The special term dismissed the complaint, and on appeal to the general term the judgment was reversed as to the city of Brooklyn, and affirmed as to defendant Ropes. Both the city and plaintiff appeal.

Almet F. Jenks, for appellant City of Brooklyn.

F. P. Bellamy, for plaintiff.

John A. Taylor, for respondent Ropes.

BRADLEY, J.

The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendants. The injury was caused by the falling of an awning, under which the plaintiff was passing, on the sidewalk on Court street, in the city of Brooklyn, in December, 1883. It was placed there several years before, and the fact that the awning was covered with boards seems to have been in violation of an ordinance of the city. The evidence tended to prove that the ends of the rafters next to the building were not securely supported, that they were merey toe-nailed to it, and that the weight of snow, which had been accumulating upon the awning for some time, caused it to fall. By the weight upon the awning the nails, or some of them, by which the ends of the rafters were fastended to the side of the building were drawn out. It does not appear that this defect in construction was apparent to passing observation, or that any examination of it was or was not made to ascertain its security. It is quite likely that the manner of construction, its means of support and inefficiency, especially to bear the weight of snow permitted to gather and remain upon it, may have been ascertained by inspection; and it is so important for the safety of travel on the sidewalk of a public street in a city that structures of that character should be adequately secured as to call upon the constituted authorities to exercise reasonable diligence to see that they are so. The length of time which the evidence tended to prove the snow had been permitted to accumulate and remain upon the awning was such as to warrant the inference of notice of its condition to the city, or those charged with the duty of keeping the streets in suitable condition for the public use and safety. This awning was in fact unsafe in the condition it was with the snow upon it, and the evidence was such as to permit the jury to find that the plaintiff's injury was attributable to the negligence of the city, through its constituted authorities. Hume v. Mayor, etc., 74 N. Y. 264;Todd v. City of Troy, 61 N. Y. 506.

It is, however, contended that the city of Brooklyn was relieved from liability by the provision of the statute that ‘the city of Brooklyn shall not be liable in damages for any misfeasance or non-feasance of the common council, or any officer of the city, or appointee of the common council, of any duty imposed upon them, or any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any provision of this act; but the remedy of the party or parties aggrieved for any such misfeasance or non-feasance shall be by mandamus, or other proceeding or action, to compel the performance of the duty, or by other action against the members of the common council, officer, or appointee, as the rights of such party or parties may by law admit, if at all.’ Laws 1873, c. 863, tit. 19, § 27. And to support the application of this exemption of the city to the present case reference is made to the statute relating to the department of city works of the city, and providing that the commissioner of that department shall, inter alia, have charge and control, subject to the direction of the common council, of paving, and repaving, and repairing and cleaning streets, avenues, and places, and keeping the same clear of encroachments, obstructions, and incumbrances. Id. tit. 14, § 1, subd. 8, § 2; Laws 1880, c. 377. Also, that among others there should be in the department a bureau having the care and charge of street cleaning, and keeping the streets, avenues, and places free and clear of encroachments, obstructions, and incumbrances, the chief officer of which should be called the ‘Superintendent of Streets.’ Laws 1873, c. 863, tit. 14, § 3, subd. 5. It appears by this statute that the matter of taking care of the streets was placed in the charge and under the control of the commissioner of the department of city works, qualified by being subject to the direction of the common council; and to carry out and execute the power thus vested in the commissioner, the bureau before mentioned was created, and with him was the power and duty to appoint the chief officer, subordinates, and employes of the bureau. The defendant Ropes was the commissioner of that department at the time of the injury to the plaintiff. It evidently was in view of the statute before mentioned that he was made a party defendant. The city was incorporated more than 50 years ago, and until 1862 no provision appears to have been made to relieve it from its full corporate responsibility. In that year such provision was inserted in the charter, (Laws 1862, c. 63, § 39;) and the question of its effect was raised and considered in Gray v. City of Brooklyn, 50 Barb. 365, where it was held available as a defense, and the decision was affirmed by the court of appeals, (2 Abb. Dec. 267.) The construction and effect of this statute was again considered in Fitzpatrick v. Slocum, 89 N. Y. 358, which was brought against the commissioners of the department of city works to recover for personal injury received by the plaintiff there, when proceeding to step onto a bridge in one of the streets of the city, and negligence of the defendants was alleged as the cause of the accident. The court held that the case did not come within the provision of the statute exempting the city from liability, and that the plaintiff was not entitled to recover. And, in referring to that provision of the statute, Judge EARL, in speaking for the court, said: ‘We are of opinion that the exemption created by this section (Laws 1873, tit. 19, § 27) is not so broad as claimed. There must be a remedy in such a case, where one is injured without fault of his own, by a defect in one of the streets or bridges of the city, either against the city or some or one of its officers. * * * That section does not exempt the city from liability to discharge a duty resting upon it, and which it has not devolved upon any of its officers.’ In the later case of Hardy v. City of Brooklyn, 90 N. Y. 435, brought to recover damages for injuries to plaintiff's real estate in the city, occasioned by negligence in constructing a sewer, this statute was relied upon for defense. The court reiterated and approved the construction given to it in the Fitzpatrick Case, and the recovery against the city was sustained. In both of those cases that of Gray v. City of Brooklyn was referred to; and in the former, after remarking that the views expressed were not in conflict with anything decided in that case, the learned judge said that it did not...