Seymour v. Village of Salamanca

• Decision Date: 28 February 1893
• Citation: 137 N.Y. 364,33 N.E. 304
• Parties: SEYMOUR v. VILLAGE OF SALAMANCA.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 364

33 N.E. 304

SEYMOUR

v.VILLAGE OF SALAMANCA.

Court of Appeals of New York.

Feb. 28, 1893.

Appeal from supreme court, general term, fifth department.

Action by Mina Seymour against the village of Salamanca for megligence. From a judgment of the general term (14 N. Y. Supp. 947) affirming a judgment for plaintiff entered on a verdict, and also affirming an order denying a motion for a new trial made on a case and exceptions, defendant appeals. Affirmed.

O. S. Vreeland, (William H. Henderson, of counsel,) for appellant.

Cook, Fisher & Wade, (W. S. Thrasher and J. B. Fisher, of counsel,) for respondent.

PER CURIAM.

Villages incorporated ander chapter 291 of the Laws of 1870 possess the power to open and improve streets within the corporate limits, and maintain sidewalks therein, and may require the owners or occupants of lands on the streets to construct sidewalks in front of their premises, and, in case of default of such owners or occupants to comply with such requirement, the trustees are authorized to make the improvement, and charge the expense upon the lands. Title 7, § 1; title 3, § 4. The exercise of the power to lay out and open streets, given by the act, is quasi judicial, and discretionary, and no private action lies for the omission by a village to exercise the power, although it may be made to appear that the public interests require its exercise. But where the discretion has been exercised, and the street has been opened for public travel, the ministerial duty to keep the street and sidewalk in repair attaches, and for a negligent omission by the village authorities to perform such duty, whereby a person, lawfully passing along the street, and himself using due care, is injured, an action lies in his favor against the village for damage. Nelson v. Village of Canisteo, 100 N. Y. 89, 2 N. E. Rep. 473.

The present action was brought for an injury sustained by the plaintiff from slipping into a hole in a plank sidewalk on the north side of Water street in the village of Salamanca, on the evening of November 24, 1885. The sidewalk was originally constructed by one Farnam in front of his premises in 1881 or 1882, before any proceedings had been taken to open Water street. A private way had been opened between the lands of Farnam and one Hevenor, extending easterly from William street to the west line of Farnam's land. He had built five houses on the tract fronting on the private way, and the sidewalk was constructed for the accommodation of his tenants. In June, 1882, proceedings were instituted by petition in conformity with section 1, tit. 7, of the act of 1870, for the laying out of a street, particularly described in the petition, extending westerly from William street 1,269 1/2 feet, and thence northerly 578 1/2 feet to River street. The proposed street included the private way laid out by Farnam, and it is inferable from the evidence that the sidewalk constructed by him was along the north bounds of the proposed street. The proceedings resulted in the making of an order by the board of trustees of the village on the 26th day of June, 1882, laying out the street in accordance with the prayer of the petition. The landowners whose lands were included in the street, with two exceptions, released any claim for damages, and a jury was duly summoned, and an award of damages made July 5, 1882, to the two landowners who had not released their claims, and on or prior to April 21, 1883, they accepted the sums awarded them respectively.

There are but two questions of law presented by the record which require special consideration. It is claimed by the learned counsel for the defendant that the street was not legally laid out, for the reason that on the presentation of the petition the trustees did not decide, by resolution entered in the minutes, that the improvement petitioned for should be made. The act provides, (title 7, § 1:) ‘On the presentation of such petition the trustees shall and must meet, and examine the same; and if they decide the improvement shall be made, they shall so decide by resolution to be entered in the minutes of the board; and they shall thereupon put up, in five public places in said village, a correct description of the lands to be taken to make such improvement, and a notice that the trustees at a place and on a day, and at an hour therein specified, not less than five days from the date and posting thereof, will meet and hear any objections.’ The record does not show, nor is there any evidence, that the trustees, prior to posting and serving the notices of the meeting to hear objections decided by formal resolution to make the improvement. There was no other irregularity in the proceedings. The hearing of objections was had pursuant to the notice, and after the hearing the trustees by resolution declared their...