Markey v. Queens Cnty.

• Decision Date: 11 January 1898
• Citation: 154 N.Y. 675,49 N.E. 71
• Parties: MARKEY v. QUEENS COUNTY et al.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 675

49 N.E. 71

MARKEY

v.QUEENS COUNTY et al.

Court of Appeals of New York.

Jan. 11, 1898.

Appeal from supreme court, appellate division, Second department.

Action by Kate Markey, administratrix of Hugh Markey, deceased, against the county of Queens and the city of Brooklyn. From a judgment of the appellate division (41 N. Y. Supp. 1123) affirming a judgment sustaining a demurrer, plaintiff appeals. Affirmed.

Bartlett and Martin, JJ., dissenting.

Charles J. Patterson, for appellant.

Townsend Scudder, for respondents.

GRAY, J.

Plaintiff's intestate lost his life through the breaking down of a bridge over Newtown creek, and this action was brought to recover damages of the defendants, the county of Queens and the city of Brooklyn, for their alleged negligence with respect to the condition of the bridge. A bridge had long existed over Newtown creek, which was the boundary line between the counties of Kings and Queens; and, pursuant to an act passed in 1892, the boards of supervisors of these counties had made a contract for its reconstruction. Meanwhile, a temporary foot bridge, for the accommodation of foot passengers during the progress of the work, was erected, and made use of by the public. The plaintiff alleges that this temporary bridge was insufficient, out of repair, inadequate for its purposes, and the calculated to bear the strain to which it would be subjected, and that the defendants were negligent in permitting its use by the public in that condition. The county of Kings, under chapter 954, Laws 1895, became absorbed on January 1, 1896, into the city of Brooklyn, which was therefore made a defendant. The county of Queens, the other defendant, demurred to the complaint, for not stating facts sufficient to constitute a cause of action against it. The demurrer was sustained at the special term and at the appellate division of the supreme court, in the Second judicial department, which latter court has certified the case to us, as involving a question of law which ought to be reviewed by this court. That question, broadly, is whether, by any rule of law, as established in this state, a county may be held liable at the suit of a private individual who has received personal injuries from a defective bridge, with the maintenance of which the county was chargeable. The question is one of considerable interest, and, beyond the general discussion, demands an interpretation of the provisions of the county law of 1892 (Laws 1892, c. 686), the second section of which declares the county to be a municipal corporation. The provision is as follows: ‘A county is a municipal corporation, comprising the inhabitants within its boundaries, and formed for the purpose of exercising the powers and discharging the duties of local government, and the administration of public affairs conferred upon it by law.’ By the third section, it is provided that: ‘An action * * * to enforce any liability created, or duty enjoined upon it, or upon any of its officers or agents for which it is liable, or to recover damages for any injury to any property or rights for which it is liable, shall be in the name of the county.’ It is argued that the county, being thus declared a municipal corporation and being charged by law with the duty of maintaining the bridge, is made subject to those liabilities which it was understood the law attached to that class of corporations for breaches of duty. It is urged that as counties never were known, before this statute, as municipal corporations, the legislature, in its enactment, must have intended that they should be treated as upon a par with cities, when engaged in similar transactions, and that this proposition should be sustained from the point of view of public interest. In considering the question before us, we must not fail to observe that the language of section 3, above quoted, seems to import no further liability than that which was then existing. The only portion of that section which is material to the case is that which provides for an action ‘to recover damages for any injury to any property or right for which it is liable.’ In other words, what the legislature appears to that done was to provide that, where the county is liable for an injury, the action shall be in the name of the county. If, prior to the passage of the county law, the county was not liable for such an injury as was sustained in the present case, did it become so thereafter, by implication from the language of the second section, as argued for the appellant, in the use of the words ‘municipal corporation,’ or by reason of the third section?

To a clear understanding of the question, it may be well to consider what was the legal status of counties of this state, and then, incidentally, what is that of a municipal corporation proper, such as an incorporated city. The civil divisions of a state into counties had their origin in England, where, preceding the organization of the kingdom itself, they were thereafter continued, from recognized necessities in government, as other countries had their departments or their provinces. In such divisions, it was found that the purposes of local government and of the administration of justice were promoted. Differing from England in their origin, in this country they were first created by the legislatures of the various colonies, and subsequently by the states of the Union. They were invested with such corporate attributes as were essential to a proper performance of the duties of local government. They were, in effect, subdivisions of the governed territory, established for the more convenient administration of government and having such powers as were necessary to be exercised for the welfare, advantage, and protection of the public within their boundaries. While in the people resided the sovereign right to declare the general mode of their government, it was the appropriate duty of their legislative body to so arrange the territory of the state into civil divisions, and to so apportion among them governmental duties, as would best conduce to the advantage of its citizens. By the common law of England, a county, though sometimes regarded as a quasi corporation, could not be subjected to a civil action for a breach of its corporate duty unless such an action was expressly given by statute. The duty of maintaining and repairing bridges belonged to it, but the only remedy for a breach of that duty was by presentment or indictment.An unsafe condition of a highway, or a bridge as a part of the highway, was regarded as the subject of a popular action, and not of a private action. In Russell v. Men of Devon, 2 Term R. 667, which was an action by an individual against the inhabitants of a county for an injury sustained through the defective condition of a county bridge, it was held that they were not such a corporation, or quasi corporation, against whom such an action could be maintained. It was reasoned that, while the inhabitants of the county might be a corporation for some purposes, no statute had authorized such an action, and that the action would be one against the public. The authority of that case, as settling the rule at common law that no civil action could be maintained for an individual injury in consequence of the breach of a public duty on the part of the inhabitants of a county, has been repeatedly recognized in England and in this country. I may refer in particular to the case of Bartlett v. Crozier, in this state (17 Johns. 439), and to the cases in Massachusetts of Riddle v. Proprietors, etc., 7 Mass. 169, and Mower v. Leicester, 9 Mass. 247, and to the very thorough discussion of the cases in England and in the United States, which will be found in Hill v. City of Boston, 122 Mass. 344, and in chapter 23, 2 Dill. Mun. Corp. I think it, however, sufficient to confine the present discussion to what the statutes and decisions of this state require us to hold upon the question.

In this state, its division into counties or sections for the purposes of local government was but a continuance of a method which, while a colony, it had adopted from England. By the constitution of the state, it was provided that such parts of the common law as formed the law of the colony of New York were retained as the law of the state. If, under the common law, counties could not be subjected to private actions for the results of acts done in the performance of governmental duties, then it should follow that counties of this state could not become liable to such actions, unless the common law in that respect has been changed by statute. Where a principle of the common law has entered into our form of government, it is controlling, until by legislation, express in its terms, it is modified, or negatived by the substitution of a new declaration upon the subject. The only statute for which that could be claimed is the county law of 1892, which heretofore I have referred to. Having regard to the fact that counties were created such for the better and more convenient government of the state, both upon authority and upon principle, in the exercise of those political powers which appertain to local government, and which are for the public benefit, they should be no more liable for damages resulting therefrom, at the suit of a private individual, than would be the state itself. The counties and towns of this state were always bodies corporate for certain purposes; having been endowed with capacities to purchase and to hold real and personal property, and to make contracts in reference thereto. Rev. St. pt. 1, art. 1, tit. 1, cc. 11, 12. The corporate powers were of defined and limited...