Mayor v. Carter

• Decision Date: 16 March 1893
• Citation: 26 A. 96,55 N.J.L. 177
• Parties: MAYOR, ETC., OF CITY OF RAHWAY v. CARTER et al.
• Court: New Jersey Supreme Court

26 A. 96

55 N.J.L. 177

MAYOR, ETC., OF CITY OF RAHWAY

v. CARTER et al.

Supreme Court of New Jersey.

March 16, 1893.

(Syllabus by the Court.)

Action for personal injuries by one Carter and others against the mayor and common council of the city of Rahway. Heard on demurrer to declaration. Judgment for defendant.

Argued at November term, 1892, before BEASLEY, C. J., and REED and DIXON, JJ.

Jackson & Codington, for plaintiffs.

B. A. Vail, for defendant.

BEASLEY, C. J. The declaration in this case sets out, in substance, that the plaintiffs sustained a personal injury by reason of one of the streets of the city of Rahway being in an unsafe condition. The negligence of the defendant in the performance of a public duty is the essential quality of the right of action. It has been settled by a long train of decisions in this state that such an action is not maintainable except in cases in which the right can be vindicated by statutory authority. A right of this kind is provided by the twentieth section of the supplement to the road act, (Revision, p. 1017,) which in express terms gives an action to any person damaged "by means of the insufficiency or want of repairs of any public road in any of the townships of this state." In common usage, and according to our statutory nomenclature, the term "road" denotes a township or county highway. The truth of this observation is manifest from each of the 187 sections of the act entitled "An act concerning roads." Besides the twentieth section, just referred to, in express terms, confines its effect to township roads. It is consequently entirely plain that it can have no application to an accident occurring in consequence of a municipal street being out of order. This action has no footing in law, and the demurrer, therefore, is well put in. The defendant must have judgment.