Kunz v. City of Troy

• Decision Date: 01 February 1887
• Citation: 10 N.E. 442,104 N.Y. 344
• Parties: KUNZ, Adm'r, etc., v. CITY OF TROY.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 344

10 N.E. 442

KUNZ, Adm'r, etc.,

v.CITY OF TROY.¹

Court of Appeals of New York.

February 1, 1887.

Appeal from general term of supreme court, Third department.

Action against a city to recover for the death of plaintiff's intestate, a boy five or six years of age, who was killed by a counter falling on him which was standing on the sidewalk in Federal street, Troy. The counter was a bar counter, such as are used in saloons, and had been placed on the sidewalk by the owner, who was a saloon keeper, in front of his saloon. At the time of the accident the counter was titled up against the wall of the building. According to the plaintiff's evidence, the boy was at his father's place of business, near by where the counter was, and on the same street, on the day of the accident. Some one requested the father to change a bill, and he went in to do so, and, on his return a few minutes later, he found the boy in the arms of a stranger, the counter having fallen on him, and inflicted injuries from which he afterwards died. It was claimed that he and other children were playing about the counter when it fell. At the trial the plaintiff was nonsuited.

E. L. Fursman, for appellant.

R. A. Parmenter, for respondent.

ANDREWS, J.

We think the case should have been submitted to the jury. The duty to keep the streets in the city of Tory in repair and free from obstructions is a corporate duty resting upon the municipality, springing from the acceptance by the city of its charter, and the power of the municipal legislative body to protect the streets against nuisances, to the injury of the public right, or of individuals lawfully using them. The charter (Laws 1816, c. 131, § 15) makes the common council commissioners of highways within the city, and it is empowered to pass ordinances to regulate and keep in repair the streets in the city, and to prevent incumbrances thereon; and it is made the duty of the mayor to cause the laws and ordinances of the city to be duly executed. Laws 1870, c. 598, tit. 2, § 2. By an ordinance passed in 1859, the placing of any obstructions upon any of the streets or sidewalks, interfering with the free use thereof, except when done under a license for the erection or repairing of buildings, is prohibited; and by another ordinance, passed the same year, the mayor, members of the common council, and other officers mentioned, were authorized to order any obstructions placed in the streets to be removed. The city was not relieved from the duty under the charter to keep the streets free from obstructions by the creation of the board of police commissioners, first established by chapter 520 of the Laws of 1870, and the duty imposed upon the police force by the twenty-third section of the act to remove nuisances from the public streets; assuming, as is claimed, that the board of police commissioners, as constituted, is an independent body, not subject to the control of the municipal corporation, or amenable to its jurisdiction. It is sufficient for the purposes of this case to say that the powers conferred and the duties enjoined upon the police department by the act of 1870, in respect to the streets, are auxiliary only, and not exclusive. Conrad v. Village of Ithaca, 16 N. Y. 158;Todd v. City of Troy, 61 N. Y. 506.

The negligence, if any, on the part of the city in the present case, does not arise from any affirmative act, but from an alleged omission to exercise proper care and supervision, and permitting the counter, unlawfully placed on the sidewalk by McLoughlin, to remain there, after notice of the obstruction. The death of the plaintiff's intestate, caused by the falling of the counter, demonstrates that it was a dangerous obstruction on the sidewalk. It is quite probable that it would not have fallen without the agency and contact of the children who were playing about it, but such an interference might reasonably have been anticipated; and to place a large object, as the counter was, on a sidewalk on a frequented street, tilted in such a manner that it could be thrown down by two or three children of five or six years of age, running against or climbing upon it, was plainly an unlawful and negligent act. The city, however, was not responsible for the original wrong. Its culpability, if any, as we have said, consists in not interfering to cause the removal of the obstruction after due notice of its existence. It is not claimed that there was any actual notice of the obstruction to the mayor, or the legislative body, or any city official, unless notice to patrolmen was notice to the city. It is denied that notice to members of the police force was notice to the city, for the reason before indicated. But, aside from the fact that the obstruction was observed by patrolmen, the counter was placed on the sidewalk on Tuesday, and remained there until Saturday, the day of the accident, and it is not claimed that meanwhile any measures were taken by the authorities to have the obstruction removed. This lapse of time, together with the fact that Federal street was in a busy and frequented part of the city, made it, we think, under the authorities, a question for the jury whether the city authorities, charged with the care of the public streets, ought to have known of the obstruction, and to have caused its removal before the accident. If the city authorities had no actual notice, nevertheless, if their ignorance resulted from the omission of the duty of inspection, and of the degree of diligence which might reasonably be expected under all the circumstances, the opportunity of knowledge stands, for the purposes of the case, as actual knowledge, and the city is equally chargeable, as if express notice had been actually proven. Weed v. Village of Ballston...