McSherry v. Trs. of Village of Canandaigua
| Decision Date | 20 January 1892 |
| Citation | 129 N.Y. 612,29 N.E. 821 |
| Parties | McSHERRY v. TRUSTEES OF VILLAGE OF CANANDAIGUA. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by John B. McSherry against the trustees of Canandaigua for personal injuries. Defendants appeal from a judgment affirming a judgment entered upon a verdict for plaintiff. Affirmed.
Ed win Hicks, for appellants.
Frank Rice, for respondent.
The plaintiff sued the defendants for the alleged neglect to keep a sidewalk in repair, in consequence whereof he sustained personal injuries by a fall through a defective and unsafe grating. The defendants have appealed from the affirmance of the general term of a judgment entered by the plaintiff upon a verdict by a jury in his favor. Of the points urged by their counsel, I deem it necessary to refer to but two; and that reference may be brief, in view of the satisfactory opinion of Judge DWIGHT at general term.
The appellants claim that the plaintiff should have been nonsuited because under the village charter the trustees were under no obligation to construct or repair sidewalks. In his very elaborate brief the counsel for the appellants bases his argument in that respect upon a construction of the act, passed in 1815, (chapter 254,) under which the village of Canandaigua was incorporated; of the subsequent act of 1847, (chapter 420,) constituting the village a separate road-district; and of those provisions or sections of the general village incorporation act of 1847 (chapter 420) which were adopted by the village electors in 1848. In my judgment, we are not called upon, and it seems unnecessary, to follow him in that argument, or to pass upon his interpretation of these laws. Whatever may have been the limitations upon the administrative powers and duties of the village trustees with respect to the making and repairing of streets or sidewalks, the subsequent enactmentof chapter 352 of the Laws of 1854 must be considered and taken to have so far enlarged those powers and duties as to have done away with the restrictions in the way of their exercise which may previously have existed with respect to authority either to undertake such work or to bind the village. The title of the act of 1854 is ‘An act in relation to the village of Canandaigua, and enlarging the powers and duties of the trustees of said village.’ Section 1 of the act provides that ‘the trustees of the village of Canandaigua shall be commissioners of highways in and for said village, and shall have all the powers of commissioners of highways; and as such they shall have power to regulate, repair, * * * the streets, * * * encroachment and injury.’ If this legislation meant anything, it could but mean any manner, and to protect the same from encroachment and injury.' It this legislation meant anythin, it could but mean a new grant of powers by the state, whereunder an ampler scope was given in...
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Trs. of Vill. of Canandaigua v. Foster
...affirmance both by the general term and the court of appeals, was paid by the plaintiffs. 59 Hun, 616,12 N. Y. Supp. 751, and 129 N. Y. 612, 29 N. E. 821. The recovery in that case was upon the ground that the grating in the sidewalk was out of repair, and that the village authorities knew,......
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