Sander v. State

• Decision Date: 03 October 1905
• Citation: 75 N.E. 234,182 N.Y. 400
• Parties: SANDER v. STATE.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 400

75 N.E. 234

SANDER

v.STATE.

Court of Appeals of New York.

Oct. 3, 1905.

Appeal from Supreme Court, Appellate Division, Third Department.

Claim by Frederick W. Sander against the state of New York. From a judgment of the Appellate Division (85 N. Y. Supp. 1146,90 App. Div. 618), affirming a judgment for claimant, the state appeals. Reversed.

Julius M. Mayer, Atty. Gen., for the State.

Frank S. Black, James C. Busby, and Henderson Peck, for respondent.

CULLEN, C. J.

This is a claim made against the state by an abutting owner for damages caused to his property by the elevation of the tracks of the New York & Harlem Railroad Company on Park or Fourth avenue in New York City. This improvement has been the occasion of so much litigation, which has reached not only this court but the Supreme Court of the United States, full details of which are found in the Reports, that it is now necessary to refer only to the particular questions presented by this appeal. In the case of Lewis v. New York & Harlem R. R. Co., 162 N. Y. 202, 56 N. E. 540, this court, while holding the railroad company liable for damage to abutting property caused by the maintenance of the viaduct and the operation of the trains thereon, decided that such liability on the part of the railroad company commenced only when it entered upon and used the structure. That decision was made in February, 1900. The next year the Legislature enacted chapter 729, p. 1787, presentation to and allowance by the Court presentation to and allowance by the Court of Claims to property owners of claims for damages suffered by the improvement made on Park avenue. This authority was subject to two qualifications: First, that the award should not include any damages for which any railroad corporation was or might be liable; second, that the facts proved should be such as to make out a case of liability were the state a corporation or private individual. Under this statute the Court of Claims, by a divided court, has awarded the respondent a judgment for the diminution of the rental value of his premises occasioned by the improvement, and that judgment has been affirmed by the Appellate Division.

While we feel constrained to reverse the judgments below on account of an error committed by the trial court in the award of damages, which we will point out later, we think it proper to first dispose of several objections interposed by the learned Attorney General to the right of the respondent to recover at all. In the first instance it is contended that the case proved established no liability on the part of the state; that therefore it did not fall within the terms of the statute; that its allowance would be a mere gratuity, and forbidden by sections 9 and 10 of article 8 of the Constitution. In support of this claim it is urged that the state, in improving the street, trespassed on no property rights of abutting owners, and that the erection of the viaduct gave such owners no right to compensation. It is true that such was the doctrine held by this court in the cases of Fries v. New York & Harlem R. R. Co., 169 N. Y. 270, 62 N. E. 358,Muhlker v. New York & Harlem R. R. Co., 173 N. Y. 549, 66 N. E. 558, and Keirns v. New York & Harlem R. R. Co., 173 N. Y. 642, 66 N. E. 1110. But on appeal to the Supreme Court of the United States the Muhlker Case, with several others which followed that decision, was reversed; the Supreme Court holding that under the decisions of this court in the elevated railroad cases abutting owners had special easements in a street, an invasion of which by the erection of a viaduct, without compensation for such invasion, was taking property without due process of law, in contravention of the federal Constitution. Of course, with the decision of the Supreme Court in the Muhlker Case, our own decisions in the cases cited have ceased to be authorities. Were further answer necessary, it may also be said that in the recent case of Matter of Borup, 182 N. Y. 222, 74 N. E. 838, we have upheld the constitutionality of a law directing a town to make compensation for a previous change of grade in a highway, although at the time the change was made there was no liability on the part of the town for the damage occasioned thereby.

It is next contended that, whatever liability there may have existed for the trespass on the respondent's property rights, that liability was on the part of the city, not on the part of the state. This position, also, is not well taken. In the Lewis Case Judge Vann said on this subject: ‘The state created a board of experts, and required them to make the improvement for the benefit of the public, giving them absolute control, with no right on the part of the defendants to let or hinder. * * * The change of grade in front of the plaintiff's premises was not only for a public purpose, but was wholly in the interest of the public, and not for the benefit of the defendants, who had no power to prevent it. They simply paid one-half of the expense by command of the statute, and hence under compulsion of law. They are not liable for the acts of the Park avenue board, which was not their agent, but a governmental agency of the state.’ It is true that in the case then before the court the question of liability between the state and city did not arise. But the statement of Judge Vann that the Park avenue board was a governmental agency of the state was well justified, both on principle and on authority. The liability on the part of a municipality, even for the acts of municipal officers, occurs only when the acts are done in the discharge of a duty or a function imposed upon the municipality itself as such. Thus a municipality is not liable for the negligent acts of the employés of the city department of charities; for the support and care of the poor is not a municipal, but a governmental, function. Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160, 20 Am. Rep. 468. In New York & Brooklyn Sawmill Co. v. City of Brooklyn, 71 N. Y. 580, commissioners appointed under an act of the Legislature to improve the Gowanus Canal, and to cause the sides thereof to be docked and the expense to be...