Coonly v. City of Albany

• Decision Date: 08 March 1892
• Parties: COONLY v. CITY OF ALBANY.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 145

30 N.E. 382

COONLY

v.CITY OF ALBANY.

Court of Appeals of New York,

Second Division.

March 8, 1892.

Appeal from supreme court, general term, third department.

Action by George W. Coonly against the city of Albany to recover damages for the obstruction of plaintiff's dock. Defendant obtained judgment on demurrer to the complaint, which judgment was affirmed by the general term. Plaintiff appeals. Affirmed.

Walter E. Ward, for appellant.

John A. Delehanty, for respondent.

The other facts fully appear in the following statement by PARKER, J.:

The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river, within the city of Albany, adapted to and valuable for the lading, unlading, and storage of merchandise from vessels. That on the 26th day of September, 1888, a canal-boat loaded with iron, while navigating the river, sunk at the said dock, and thereby obstructed its use to the plaintiff's damage. That the defendant assumed the duty of keeping the river free from obstructions by section 10, c. 42, of the ordinances of the city of Albany, which reads as follows: ‘Whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf, or slip, or any where in the Hudson river opposite to the city of Albany, and within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor, or other person sailing such vessel, to remove the same within twenty-four hours; and in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice in one of the newspapers printed in the city of Albany, at least one week, directing the removal of such vessel as aforesaid; and, if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat, or flat, and to remove the same, and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal.’ That on the 28th and 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice is annexed to the complaint. That on the 29th day of September, 1888, the mayor gave the street commissioner written directions to remove said boat. That said street commissioner took the preliminary steps, as provided by the city ordinance, to accomplish that result, and notified the owner to remove the boat, but finally on or about the 26th day of October, 1888, declined to remove the same, or to do anything more towards that end. That thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid them for the work $314.79, besides having suffered other damage, to the amount of $1,000, by reason of said sunken boat not being removed by said street commissioner within a reasonable time. By reason of said facts, plaintiff asks for judgment against the city of Albany for $1,414.79. The defendant demurred upon the ground that the facts stated did not constitute a cause of action.

PARKER, J., ( after stating the facts.)

The defendant did not own, nor did it sink, the boat. It neither caused, nor in any wise contributed towards the creation of, the nuisance. Therefore, Brayton v. Fall River, 113 Mass. 218;Haskell v. New Bedford, 108 Mass. 216;Rolling Mills v. Cambridge, 117 Mass. 396; Franklin Wharf v. Portland, 67 Me. 46; and Sleight v. City of Kingston, 11 Hun, 594,-cited by the appellant, are not in point. The liability, if any, must be founded on a duty to keep the navigable waters of the Hudson, within the city limits, free from obstruction. The obligation to keep streets and highways in a safe condition for public use cannot be invoked against the defendant here; for, while the river is a highway for the passage of vessels, that portion of it which happens to be embraced within the boundaries of a city is not one of its highways, so as to burden it with the duty of removing obstructions, and keeping it safe for navigation. Seaman v. Mayor, 80 N. Y. 239. The river, being a highway for state, interstate, and foreign commerce, is subject to regulation by congress; but the state, because of its great interest in the continuing availability of navigable waters within its borders for vessels, may properly assume to remove such obstacles as may from time to time prove a menace to successful navigation, provided, always, that it does not impair freedom of navigation under the acts of congress, or interfere with any system of improvement provided by the general government. But while the general government, together with the aid of the state government, may, and generally does, provide for the removal of obstacles which are a hindrance to navigation, and the doing of other necessary things for the encouragement and protection of commerce, and performance in that respect is regarded as a duty, still it is not one that the individual may enforce. Judge AGNEW, in the Winpenny Case, (65 Pa. St. 135, 140,) said: ‘It is not a duty of perfect obligation, but one of voluntary assumption or imperfect obligation, inasmuch as it cannot be enforced against the will of the state.’ The state may not only undertake, at its expense, to remove obstructions in, and generally improve the condition of, navigable waters; but, in its discretion, it may place the burden of performance on a city or county more immediately and beneficiallyinterested than other portions of the state. Mobile Co....