MacMullen v. City of Middletown

Decision Date08 January 1907
Citation79 N.E. 863,187 N.Y. 37
PartiesMacMULLEN v. CITY OF MIDDLETOWN.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Charles MacMullen against the city of Middletown. An interlocutory judgment was entered overruling a demurrer to the complaint (92 N. Y. Supp. 410), which was affirmed by the Appellate Division (112 App. Div. 81,98 N. Y. Supp. 145), after which the case was certified to the Court of Appeals. Reversed.

Russell Wiggins and Henry W. Wiggins, for appellant.

Abram F. Servin and Elbert N. Oakes, for respondent.

GRAY, J.

The plaintiff, a resident of the city of Middletown, in this state, sustained personal injuries from a fall upon a sidewalk of the city, at a point where show and ice had accumulated. He thereafter commenced this action to recover damages against the city. He alleges, in his complaint, that the defendant had neglected to remove the snow and ice from the sidewalk, though it had knowledge, or notice, of its dangerous condition for some time prior to the accident. The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The legal question, presented by the demurrer, arises out of one of the provisions of the defendant's charter. Chapter 572, p. 1367, of the Laws of 1902. The charter imposes upon the common council, as commissioners of highways for the city, the duty of keeping the streets in good order and of requiring owners, or occupants, of abutting properties to clean the snow and ice from the sidewalks. The office of superintendent of streets was created, whose incumbent should superintend the work to be done upon the public streets. Sections 68, 107. Section 30 of the charter contains the provision under consideration and reads: No civil action ‘shall be maintained for damages or injuries to the person sustained in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street, unless written notice thereof relating to the particular place, was actually given to the common council and there was a failure or neglect to cause such snow or ice to be removed, or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.’ It is not alleged in the complaint that this written notice had been given, and, as such a notice was made a condition precedent to the maintenance of such an action, the absence of such an allegation would be fatal to the complaint upon demurrer, unless the provision of the statute was invalid because violating some constitutional right of the plaintiff. The courts below have overruled the demurrer, and the Appellate Division, in the Second Judicial Department, has certified to this court for our review the questions of law whether the complaint states facts sufficient to constitute a cause of action, and whether the provision contained in section 30 of the charter, above referred to, is constitutional.

As to the first question, it suffices to say that, if the provision of the charter was a valid enactment, it was an essential part of the plaintiff's cause of action, and compliance with its requirement, as to giving the written notice specified, must be alleged and proved. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792. The opinion of the Appellate Division concedes that there can be no evasion of this provision of the charter, but reaches the conclusion that the enactment exceeded the powers of the Legislature and is, therefore, unconstitutional. In that view I am unable to agree with the learned justices below, and I think that it was somewhat influenced by a misapprehension of the effect of the decisions upon the subject of the duties and liabilities of our municipal corporations. The opinion below discusses the distinction which exists between those duties, which may be imposed upon the municipality for its private, or local, interests, and those which may be imposed upon its officers for the benefit of the public, generally. In the one case, it is reasoned, there exist a duty and a consequent liability for its breach, as in the case of a private corporation, while in the other case the duty is performed as a political agency and is governmental. As, therefore, the duty of caring for its streets is imposed upon the municipality for its own benefit, it is to be regarded as a private company, whose breach of duty in that respect would entail upon it a liability enforceable by ‘a common-law action and in no sense * * * statutory.’ It was admitted that, if the liability was statutory, the Legislature could impose any conditions, but, not being such in its nature, the provision that a written notice must have been actually given, before an action could be maintained, was equivalent to the denial of any remedy for the wrong. It was, in effect, held that there was a right growing out of the breach of the duty owing from the defendant to the plaintiff, which was within the protection of the constitutional guaranties.

In my view of this question, the Legislature in no wise exceeded its just powers by the enactment of the provision in this charter, however restrictive the requirement. A municipal corporation is a political, or governmental, agency of the state, which has been constituted for the local government of the territorial division described, and which exercises, by delegation, a portion of the sovereign power for the public good. In its organization and in the assignment of its powers and duties, the Legislature acts supremely. The power to grant, or to deny, a remedy by private action for the breach of a duty, imposed upon it for governmental purposes, and to affix conditions, where the right to an action is given, is not one which should be called in question. It may be that such a question, upon precisely these facts, may not have been presented to this court in previous cases. The cases are numerous which involved the right of a municipality to defeat the claims of a plaintiff, because of the failure to show notice, or knowledge, on its part of the conditions complained of, and because of the failure to comply with statutory requirements of notice to municipal officers, before the commencement of an action. The novelty of the case, in the feature of the statutory requirement that a written notice shall have been given, is explained in the legislative purpose to make that certain which before was often uncertain. The fact of knowledge should no longer be dependent upon inferences from the evidence of circumstances, nor the liability of the municipality be left to a determination reached upon an indulgent construction of the legal rule as to actual notice. In the case of Curry v. City of Buffalo, 135 N. Y. 366, 32 N. E. 80, where the plaintiff, who had been injured by a fall upon a defective sidewalk, had failed to recover her damages, by reason of the omission to file, pursuant to the statutory provision, a notice of her intention to commence an action and of the time and place at which the injuries were received, we did say, quite explicitly, that ‘the whole matter of the maintenance of this class of actions was within the control of the Legislature. It could refuse a right of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions.’

This statement of the rule was deliberate, and in my opinion it is correct, when the nature and functions of municipal corporations are considered. It was quoted with approval by the Appellate Division in Rider v. City of Mt. Vernon, 87 Hun, 29, 33 N. Y. Supp. 745, in Patterson v. City of Brooklyn, 6 App. Div. 129,40 N. Y. Supp. 581, and in Thrall v. Cuba Village, 88 App. Div. 413,84 N. Y. Supp. 661. These corporations are bodies politic, created by laws of the state for the purpose of administering the affairs of the incorporated territory. They exercise powers of government, which are delegated to them by the Legislature, and they are subjected to certain duties. They are the auxiliaries, or the convenient instrumentalities, of the general government of the state for the purpose of municipal rule. The consideration of the grant of a charter is the benefit to the public, and their relation to the state is not contractual, in the constitutional sense, for there is no element of reciprocity and the corporate duties are incompatible with the notion of a compact. The whole interests are the exclusive domain of the government itself, and the power of the Legislature over them is supreme and transcendent, except as restricted by the Constitution of the state. Their charters being granted for the better government of the particular districts, the right to insert such provisions as seem to best subserve the public interest would seem, from the very nature of such institutions, to be inherent. People ex rel. Wood v. Draper, 15 N. Y. 532, 544;People v. Tweed, 63 N. Y. 207;Meriwether v. Garrett, 102 U. S. 472, 511, 26 L. Ed. 197;Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629; Cooley's Constit'l Lim. p¨. 1913; Dillon on Munic. Corp's, §§ 9, 30; Ang. & Ames on Corps. § 31. These principles are familiar from their frequent statement in the books, and their brief summary here is to emphasize the idea that a municipal corporation is but a part of the machinery of government; that it is the...

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