Cooper v. Westchester County
| Decision Date | 10 December 1941 |
| Citation | 42 F. Supp. 1 |
| Parties | COOPER v. WESTCHESTER COUNTY. |
| Court | U.S. District Court — Southern District of New York |
Pennie, Davis, Marvin & Edmonds, of New York City (Daniel V. Mahoney, of New York City, of counsel), for plaintiff.
Edwards, Bower & Pool, of New York City, and William A. Davidson, of Port Chester, N. Y., for defendant.
The plaintiff, pursuant to the provisions of Rule 12(d) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, moves for a preliminary hearing on the defenses presented by paragraphs 2 and 5 of defendant's answer.
The action is one for infringement of three patents of the plaintiff. Usually the only issues in such action are validity and infringement of the patents. However, this complaint alleges infringement by the defendant through certain agencies, which led the defendant to set up the defenses which the plaintiff now challenges. It is alleged in the complaint that the Westchester County Park Commission, as an agent of the defendant, through the installation and use of toll checking equipment on the Fleetwood Toll Bridge at Fleetwood, New York, infringed these patents. By amendment made during the course of the preliminary hearing, acts of infringement committed since April 2, 1941, are alleged to have been committed by the Westchester County Park Commission also as agent of the defendant. No testimony was offered at the hearing, so the matters for decision are presented by the pleadings. Having elected to allege that the act of infringement by the Westchester County Commission was as agent for Westchester County, it became necessary for the plaintiff, in order to obtain jurisdiction over the defendant, to allege that the action was brought after due notice had been given in compliance with the requirements of Sec. 16 of Chap. 292 of the Laws of New York of 1922, as amended by Chap. 561 of the Laws of 1931.
The issues of agency and notice having thus been tendered by the plaintiff, the defendant denied by its answer that the plaintiff had complied with the requirements of the New York laws referred to, and denied that a notice to the Westchester Cross County Parkway Authority was given pursuant to the Laws of 1941, Chap. 211, and particularly Sec. 317 thereof, Public Authorities Law, Consol.Laws, c. 43-A.
The answer also challenges the jurisdiction of the court, averring that the defendant, as a political subdivision of the State of New York is immune from suit by virtue of the sovereign immunity of the State of New York; that the State of New York has not consented to the bringing of an action against this defendant; and that the complaint fails to state a claim upon which relief can be granted.
The purpose of this preliminary hearing is to test the sufficiency of these defenses.
The immunity defined in the 11th Amendment of the Constitution of the United States has been held not to extend to counties of a state; Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766; Camden Interstate R. Co. v. Catlettsburg, C.C., 129 F. 421; McCreery Engineering Co. v. Massachusetts Fan Co., 1 Cir., 195 F. 498; Dunnuck v. Kansas State Highway Commission, D.C., 21 F.Supp. 882. Nor does it appear that the State of New York makes any such claim of immunity for its municipal subdivisions. Indeed, County Law of the Laws of 1909, c. 16, Chap. 11 of the Consolidated Laws, Sec. 6-a, provides for suits against counties, and there is nothing in any special legislation affecting Westchester County which made that county immune from suit. Neither the state statute and its amendments which created the Westchester County Parkway Commission and defined its powers, nor the later statute creating the Westchester Cross County Parkway Authority and defining its powers, sets forth any constitutional or other immunity from suit. These laws in effect authorize the governing body of the County of Westchester, its Board of Supervisors, to appoint commissioners, and these commissioners are thereupon vested with certain powers relating to the control and management of parks and parkways. These commissions act not for the State of New York but for the County of Westchester. As agents for their principal, they cannot create for their principal a constitutional immunity which that principal did not theretofore enjoy. Moreover, these commissions or authorities in their own behalf are not parties to this action. But even if they were so named they would not be entitled to assert constitutional immunity. The very acts setting up the agencies constitute in effect a state waiver of immunity, if indeed such immunity could be claimed in any circumstances, for they provide the conditions under which actions can be instituted against them. Murray v. Transit Commission, D.C., 11 F.Supp. 27, affirmed 2 Cir., 104 F.2d 1017; Louisiana Highway Commission v. Farnsworth, 5 Cir., 74 F. 2d 910. The State of New York is neither a nominal nor a real party in interest. American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., D.C., 10 F.Supp. 512, affirmed 2 Cir., 76 F.2d 1002, certiorari denied City of New York v. Murray, 295 U.S. 760, 55 S.Ct. 923, 79 L.Ed. 1702.
It may well be that the Commission and the Authority, as well as the County, could have been charged with infringement and named as proper parties in the complaint; but since they clearly appear from the statutes creating them, as agents, not of the State of New York but of the County of Westchester, any decree restraining the county from continuing acts of infringement, would be effective against its officers, directors, employees, agents and all others acting on its behalf. Parenthetically, it may be observed that the defendant is the real party in interest, for the tolls which are collected from the use of the challenged devices are paid to the county treasury, as Chap. 292 of the Laws of 1922 specifically directs. It is for these reasons that it would appear that the defense of lack of jurisdiction as set forth in Paragraph 2, subdivisions a, b, and c of the answer is without merit.
There remains the defense concerning the inadequacy of the notices given under the statutes, which the plaintiff relies on to prove agency.
Considering first the acts of infringement alleged to have been committed since April 2, 1941, the defendant argues that the Cross County Parkway Authority did not receive the notice required by Chap. 211 of the Laws of 1941, Sec. 317. That section reads in part:
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...of Columbia, 99 U.S.App.D.C. 32, 237 F.2d 28, cert. denied 352 U.S. 934, 77 S.Ct. 221, 1 L.Ed.2d 160 (1956); Cooper v. Westchester County, 42 F.Supp. 1 (D.C.N.Y.1941).7 See, McGuire v. Hennessy, 292 Minn. 429, 193 N.W.2d 313 (1971); Long v. City of Knoxville, 467 S.W.2d 309, 310--311 (Tenn.......
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Smith v. Piper Aircraft Corporation, 28153.
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