Evans v. Berry

• Decision Date: 23 May 1933
• Parties: EVANS v. BERRY, City Comptroller.
• Court: New York Court of Appeals Court of Appeals

262 N.Y. 61

186 N.E. 203

EVANS

v.BERRY, City Comptroller.

Court of Appeals of New York.

May 23, 1933.

Proceedings in the matter of the application of Inez Evans, for a mandamus order against Charles W. Berry, as Comptroller of the City of New York. From an order of the Appellate Division (236 App. Div. 334, 258 N. Y. S. 473), unanimously reversing an order of the Special Term (141 Misc. 920,253 N. Y. 569), granting petitioner's motion for a peremptory mandamus requiring the City Comptroller to pay to the petitioner an award for injuries received from accidental shooting by a police officer, and denying the motion, the petitioner appeals.

Order of the Appellate Division reversed, and order of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Irwin J. Sikawitt, of New York City, for appellant.

Arthur J. W. Hilly, Corp. Counsel, of New York City (J. Joseph Lilly, Henry J. Shields, and Thomas W. A. Crowe, all of New York City, of counsel), for respondent.

Edwin M. Borchard, of New York City, amicus curiae.

POUND, Chief Judge.

On February 5, 1927, members of the police force of the city of New York, lawfully engaged in the pursuit of robbers who had held up a drug store on Melrose avenue in the borough of The Bronx, fired a number of pistol shots at the fugitives. The appellant, who was at the time passing along Melrose avenue near the scene of the holdup, was struck by a bullet from the revolver of one of the police officers and so wounded that she is now a partial cripple.

On December 10, 1927, the Municipal Assembly of the City of New York adopted a local law known as New York Local Law No. 13 of 1927, which provided: ‘Section 1. The board of estimate and apportionment is hereby authorized and empowered, in its discretion, to make an award to a person who has been or hereafter shall be injured by a police officer while such officer is engaged in arresting any person or in retaking any person who has escaped from legal custody or in executing any legal process. Such award shall be of such amount as the board of estimate and apportionment shall deem just and equitable.’

On January 26, 1928 the Board of Estimate and Apportionment of the City of New York adopted a resolution by which the petitioner was awarded $6,740 for damages and expenses resulting from the accident.

The defendant, the Comptroller of the City of New York, refused to pay the award and the Appellate Division has sustained him, reversing the Special Term and holding that municipal liability could not constitutionally be extended by local law so as to cover the case.

The question is thus presented whether the city of New York may constitutionally assume a liability for the act of a police officer who, with or without fault on his part, injures an innocent bystander while engaged in his governmental duty of making an arrest.

The pertinent provisions of the Constitution as to the powers of the city are contained in article 12, § 3, which contains the Home Rule provisions incorporated in the Constitution in the fall of 1923. Section 3 reads as follows: Power of cities to enact local laws.-‘§ 3. Every city shall have power to adopt and amend local laws not inconsistent with the constitution and laws of the state, relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensationof all officers and employees of the city, the transaction of its business, the incurring of its obligations, the presentation, ascertainment and discharge of claims against it, the acquisition, care, management and use of its streets and property, the wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or subcontractor perfoming work, labor or services for it, and the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health. The legislature shall, at its next session after this section shall become part of the constitution, provide by general law for carrying into effect the provisions of this section.’

Thus was wrought an extensive but not complete separation from the state of the power to govern the cities of the state.

Following the adoption of this amendment to the Constitution, the Legislature enacted the City Home Rule Law (Consol. Laws, c. 76; Laws of 1924, c. 363, as amended Laws 1928, c. 670, Laws 1929, c. 646), which, among other matters, provides:

Ԥ 11. Power of cities to adopt and amend local laws.

1. Unless hereafter restricted by the legislature under the provisions of section one of article twelve of the constitution, the local legialative body of a city shall have power to adopt and amend local laws in relation to the property, affairs or government of a city including but not limited to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city, the transaction of its business, the incurring of its obligations, the presentation, ascertainment and discharge of claims against it, the acquisition, care, management and use of its streets and property, the wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or subcontractor performing work, labor or services for it, the government and regulationof the conduct of its inhabitants and the protection of their property, safety or health.

‘2. In the exercise of such powers, the local legislative body of a city shall have power.

‘a. To delegate to any local authority power,by rule, regulation, resolution or ordinance, to provide for carrying into effect the provisions of any local law. * * *

‘§ 31. Construction. This chapter shall be construed liberally. The powers herein granted shall be in addition to all other powers granted to cities by other provisions of law.’

By the General City Law (Consol. Laws, c. 21, Laws of 1913, ch. 247) it is provided:

Ԥ 20. Grant of specific powers. Subject to the constitution and general laws of this state, every city is empowered: * * *

‘5. * * * To pay or compromise claims equitably payable by the city, though not constituting obligations legally binding on it. * * *’

The power has thus been delegated, both expressly and by implication, to the city to allow equitable claims against it, so that the city has all the power to recognize quitable claims against it that the state had to recongnize equitable claims against the state, except as limited by the Constitution itself and by general laws.

Local laws must be consistent with the Constitution. Section 10, article 8 of the Constitution reads in part as follows: ‘§ 10. No * * * city * * * shall, hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; * * * nor shall any such * * * city, * * * be allowed to incur any indebtedness except for * * * city, * * * purposes. * * *’

It follows that the local law is invalid if it provides for a gift to an individual or permits the creation of an indebtedness for other than a city purpose.

At common law cities were not liable for the torts of police officers. Although appointed and paid by the city, such officers were not regarded as municipal agents or servants. When acting in the course of their duty, they were said to be performing a governmental function. The city was immune from liability because the doctrine of respondeat superior was held to be inapplicable. This was a rudimentary survival of the maxim, ‘The King can do no wrong.’ Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160, 164,20 Am. Rep. 468;Augustine v. Town of Brant, 249 N. Y. 198, 204, 163 N. E. 732. In Ohio the courts changed the common-law rule so as to impose liability on the city for the wrongful acts of its policemen and firemen in Fowler v. City of Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131, only to restore it in Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N. E. 164, 27 A. L. R. 1497.

It has not been questioned in this court that the Legislature may impose on the cities liability for the negligent acts of their police officers. This was done by Highway Law (Consol. Laws, c. 25), section 282-g, added by Laws of 1929, chapter 466, enacted to make municipalities liable for the negligence of the operators of their vehicles in the exercise of their statutory duties, in the course of their employment and in the discharge of their governmental functions. Miller v. City of New York, 235 App. Div. 259, 257 N. Y. S. 33. The Legislature provided that such an operator should, for the purpose of the act, ‘be deemed an employee of the municipality, notwithstanding the vehicle was being operated in the discharge of a public duty.’ The act of the Legislature in thus changing the commonlaw rule was held by this court not even to involve the construction of the Constitution of the state. An appeal to this court from a unanimous affirmance of a decision upholding the validity of the statute, taken as of right and without leave, under Civil Practice Act, § 588, subd. 1, was dismissed in Rothman v. City of New York, 259 N. Y. 663, 182 N. E. 225, on the ground that no constitutional question was involved. There is no lack of power in the Legislature to change the common-law rules of liability and create statutory...