City of Rochester v. Campbell

CourtNew York Court of Appeals
Writing for the CourtRUGER
Citation25 N.E. 937,123 N.Y. 405
Decision Date02 December 1890

123 N.Y. 405
25 N.E. 937


Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, fifth department.

[123 N.Y. 406]Eugene Van Voorhis, for appellant.

123 N.Y. 408]Henry J. Sullivan, for respondent.
[123 N.Y. 409]RUGER, C. J.

The question involved in this appeal are raised by a demurrer to the complaint, alleging that it does not contain facts sufficient to constitute a cause of action. The action, as stated in the complaint, is based upon a liability alleged to have been incurred by the defendants' testator under a clause in the charter of the city of Rochester, which provides that ‘it shall in all cases be the duty of the owner of every lot or piece of land in said city to keep the sidewalks adjoining his lot or piece of land in good repair, and also to remove and clear away all snow and ice or other [123 N.Y. 410]obstruction from such sidewalk.’ It was further provided that ‘the superintendent of streets shall have the power to repair any sidewalk, when the owner of the property shall neglect to repair the same for five days after written notice so to do has been served on him;’ and ‘the street superintendent shall also have the power to collect the expense of any such work or repair from the owner of the property.’ The complaint alleged, in substance, that the defendants' testator was the owner of a lot of land on Strong street, in the city of Rochester, and that in front of and adjoining said premises there was a sidewalk for the use of pedestrians using said street; that it became, and was, the duty of said testator, under and by virtue of the acts relating to the city of Rochester, and forming its charter, to keep said sidewalk in good repair; that the said testator omitted this duty; whereby one Margaret A. Ferguson, while walking carefully along said street and sidewalk, and without fault or negligence on her part, stepped into a hole in said sidewalk, and was thereby thrown down with great violence, and permanently hurt and injured. It was also alleged that said Margaret had brought an action

[25 N.E. 938

against the city of Rochester for the damages occasioned to her by said injury, and recovered therein, and that the city of Rochester had paid the amount of the judgment so recovered against it. It was also alleged that the defendants' testator died before such action was commenced, and left a last will and testament whereby the defendants were appointed his executors; that such executors were notified by the city of Rochester of the pendency of the action, and requested to come in and defend the same; and that they were represented by counsel on the trial. It will be observed that the complaint does not charge the defendants' testator with negligence, or the breach of any contract duty; but his liability is predicated wholly upon the statutory obligation to repair, and the assumption that an omission to perform it imposes a liability in favor of all persons who may be injured by reason of such omission. The principles governing actions of this character have been [123 N.Y. 411]the subject of frequent consideration in the courts of this and other states, as well as the federal tribunals; and contain propositions may safely be assumed, in the further consideration of the case, as being too well settled to require argument or citation to support them. Among these are the following: (1) That municipal corporations in this state are charged with the care, custody, and control of the streets and highways within their limits, and the duty, primarily, rests upon them to keep such streets and highways in repair, so that they may be safely traveled upon by all having occasion to use them, and this duty is based upon the contract implied through the acceptance of a charter by such corporation from the state, devolving upon them the performance of such duties. Conrad v. Ithaca, 16 N. Y. 158;Saulsbury v. Ithaca, 94 N. Y. 27. (2) That such corporations are liable for damages arising from a neglect to perform this duty, in an action ex delicto, to persons lawfully using such streets and sidewalks, notwithstanding a duty to repair is also imposed upon the property owners in front of whose premises the injury occurred. Russell v. Canastota, 98 N. Y. 496;State v. Gorham, 37 Me. 457;Gridley v. Bloomington, 88 Ill. 554;Robbins v. Chicago, 4 Wall. 657;Saulsbury v. Ithaca, 94 N. Y. 27. (3) If a municipal corporation has been compelled to pay a judgment for damages recovered by a traveler for injuries sustained from a defect or obstruction in one of its highways, which defect or obstruction was created by the willful act or negligence of a third person, it may maintain an action against such third person for reimbursement, and the rule is the same when it has paid an undoubted liability without suit. Thomp. Neg. p. 789; Rochester v. Montgomery, 72 N. Y. 65; Village of Fulton v. Tucker, 3 Hun, 529. (4) So, also, if the municipality has provided by contract with third persons for keeping its streets in repair, and has been, through a neglect by such party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has thus been compelled to pay. (5) The measure of [123 N.Y. 412]damages in such cases is the loss sustained by the injured party, and paid by the municipality, with such incidental expenses as may have been incurred in defending the action. Thomp. Neg. p. 791; City of Brooklyn v. Railroad Co., 47 N. Y. 476. (6) That no obligation to repair streets or sidewalks rests upon the lot-owners at common law, but the duty to do so, if any, arises out of the statutory obligations imposed by the state or municipality upon them. Village of Fulton v. Tucker, 3 Hun, 529; Dill. Mun. Corp. § 1012. (7) When a corporation is sued for damages arising out of defects and obstructions in its streets and highways, created and continued by third persons, against whom the corporation has a cause of action for reimbursement, it may impose the burden of defending such actions upon such persons by notice, and in case they do not defend successfully, or neglect to make any defense, they are bound by the result of such suit, and cannot in any subsequent litigation between themselves and the corporation successfully dispute the material facts on which the adjudication rests. Rochester v. Montgomery, 72 N. Y. 65;Port Jervis v. Bank, 96 N. Y. 550.

Assuming the correctness of these propositions, the question which first presents itself is whether abutting owners incur any liability to individuals or municipalities for damages arising from streets rendered defective through want of repairs. under a charter like that in question. The theory upon which actions have heretofore generally been sustained in favor of municipal corporations against wrong-doers, for damages which they have been compelled to pay individuals injured through defects or obstructions in streets and highways, is that such corporations have succeeded, in some way, to the remedies of the injured party against the wrong-doer. Recoveries have been allowed in such cases only where the...

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