Rivera v. City of Amsterdam
| Decision Date | 23 May 1958 |
| Citation | 5 A.D.2d 637,174 N.Y.S.2d 530 |
| Parties | Maria RIVERA, as Administratrix of the Goods, Chattels and Credits of Juan Rivera, Juan Rivera, Jr., Ilda Rivera, Domingo Rivera, Angelo Rivera, and Ignacio Rivera, Deceased, Plaintiffs-Appellants, v. The CITY OF AMSTERDAM, New York, and Adam Kuchis, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Joseph Jacobs, Amsterdam, for plaintiffs-appellants.
Harold E. Kennedy, Taylor & Kennedy, Amsterdam, for defendant-respondent City of Amsterdam.
Donald A. Campbell, Amsterdam, for defendant-respondet Adam Kuchis.
Before FOSTER, P. J., and BERGAN, COON, GIBSON and REYNOLDS, JJ.
In a fire on February 1, 1955 which swept through a multiple residence in which they lived in Amsterdam, the plaintiff's intestates and others lost their lives. The action is against the city and the owner of the building and has been dismissed at the end of plaintiff's proof.
The theory of action against the city is that the fire of February 1, 1955 was caused by a defective oil heater; that the city had knowledge six weeks earlier that the oil heater was defective and failed to follow up its knowledge to require correction of the defect or prevent the use of the heater; and that this failure actively to see to it that the defect was corrected incurred a liability under Multiple Residence Law, § 303.
This section in substance requires that the provisions of the Multiple Residence Law shall be enforced by the appropriate city officer of department; and appellant agrues that since the defective heater was a thing 'dangerous or detrimental to human life' within Section 305 it should have been 'abated' or 'enjoined in the manner prescribed by the Public Health Law'; and not having done this, the city became liable for the damages sustained in the fire.
No liability is cast upon public authority by the Multiple Residence Law for private damage resulting from failure to enforce its directory provisions. The language of the statute, indeed, seems to suggest that the usual means of enforcement to be expected would be by resort by the city officers to judicial process.
The failure to comply with an order to remove a violation is made a misdemeanor of which 'Courts of special sessions shall have exclusive jurisdiction' (Section 304, subd. 1); and the abatement or injunction against nuisances provided in Section 305 envisages resort to judicial process.
Proceedings by public authority in a court to enforce statute law is in the nature of a governmental function, the failure of which is not actionable on behalf of a private person suffering damage.
In this respect the duty of the city to act to enforce provisions of the Multiple Residence Law is quite similar to the duty to provide adequate police protection, the failure of which was held not to be actionable in Murrain v. Wilson Line, 270 App.Div. 372, 59 N.Y.S.2d 750, affirmed 296 N.Y. 845, 72 N.E.2d 29; or the failure of a village to provide safeguards at the...
To continue reading
Request your trial
-
Forestview Homeowners Ass'n, Inc. v. Cook County, 57777
... ... Williams v. City of Bloomington, 108 Ill.App.2d 307, 247 N.E.2d 446 ... In this case, no statute ... City of Garland (Tex.Civ.App.1973), 491 S.W.2d 175; compare Rivera v. City of Amsterdam (1958), 5 A.D.2d 637, 174 N.Y.S.2d 530. As alleged in its tendered amended ... ...
-
Rottkamp v. Young
... ... The rule, as expressed, has a long and respected vintage (cf. Rochester White Lead Co. v. City of Rochester, 3 N.Y. 463, 466; People ex rel. Coughlin v. Gleason, 121 N.Y. 631, 635, 25 N.E. 4, 5; ... State of New York, 14 A.D.2d 645, 218 N.Y.S.2d 742; Rivera v. City of Amsterdam, 5 A.D.2d 637, 174 N.Y.S.2d 530; Lockwood v. Village of Buchanan, 18 Misc.2d ... ...
-
Campbell v. City of Bellevue
... ... For example, in Motyka v. Amsterdam, 15 N.Y.2d 134, 139, 256 N.Y.S.2d 595, 598, 204 N.E.2d 635, 637 (1965), wherein it was contended a negligent fire department inspection under safety ... 5 Among those cases relied upon are: Steitz v. Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342 (1945); Rivera v. Amsterdam, 5 A.D.2d 637, 174 N.Y.S.2d 530 (1958); Carroll v. New York, 37 Misc.2d 563, 234 N.Y.S.2d 954 (Sup.Ct.1962); Motyka v. Amsterdam, 15 ... ...
-
Meisner v. Healey
... ... Plaintiffs-Respondents, ... Joseph HEALEY, The City of New York and The Welsbach Corp., ... Defendants-Appellants ... Supreme Court, Appellate ... Moreover, the City's failure to enforce it is not actionable. (Rivera v. City of Amsterdam, 5 A.D.2d 637, 174 N.Y.S.2d 530.) 'A fortiori, tort liability may not be ... ...