Willis v. Parker

• Decision Date: 07 January 1919
• Citation: 225 N.Y. 159,121 N.E. 810
• Parties: WILLIS v. PARKER.
• Court: New York Court of Appeals Court of Appeals

225 N.Y. 159

121 N.E. 810

WILLIS

v.PARKER.

Court of Appeals of New York.

Jan. 7, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Cora Willis against F. Edwin Parker. From final judgment for defendant by Supreme Court, after affirmance of an interlocutory judgment by the Supreme Court (173 App. Div. 552,159 N. Y. Supp. 676), sustaining demurrer to complaint, plaintiff appeals; the appeal bringing up for review the interlocutory judgment. Reversed, and judgment ordered overruling defendant's demurrer.

Frank Cushing, of Auburn, for appellant.

Amasa J. Parker, of Auburn, for respondent.

HOGAN, J.

The plaintiff in her complaint alleged that the defendant was the owner and occupant of premises commonly known as No. 120 Wall street, in the city of Auburn; that on the evening of September 10, 1912, while she was passing along Wall street in front of the premises of the defendant, she sustained severe personal injuries, due to the negligence of defendant in failing to maintain and keep in repair a plank sidewalk on which plaintiff was lawfully traveling. Additional facts are stated in the complaint sufficient to constitute a cause of action, assuming that the defendant was liable to respond in damages to the plaintiff.

The defendant served a demurrer to the complaint and stated as the grounds thereof: (1) That it appears on the face of the complaint that said complaint does not state facts sufficient to constitute a cause of action; (2) defect in parties defendant in that the city of Auburn is a necessary party defendant. The demurrer was sustained, and from a final judgment entered in favor of defendant plaintiff appeals to this court.

As the determination of the question presented upon this appeal is dependent upon a construction of section 99 of the charter of the city of Auburn, a review of the provisions of the charter relating to the authority of the common council to enact and enforce ordinances relating to streets and sidewalks is unnecessary. Section 99 of the charter so far as material reads:

‘The owner or occupant of lands fronting or abutting on any street, highway, traveled road, public lane, alley or square, shall make, maintain and repair the sidewalk adjoining his lands and shall keep such sidewalk and the gutter free and clear of and from snow, ice and all other obstructions. Such owner or occupant and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk, or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks and the removal of snow, ice and other obstructions from sidewalks, curbstones and gutters. * * *’ Laws 1879, c. 53, § 113, amended Laws 1897, c. 172, § 8.

Counsel for respondent in his brief asserts that the foregoing provision of the charter was first enacted by section 133, chapter 536, Laws 1895, and as bearing upon the intention of the Legislature in the enactment of the statute calls attention to the decision of this court in City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760, which involved the liability of a property owner to the city of Rochester for a judgment recovered against that city by reason of an injury sustained by an individual due to the negligence of the abutting owner and argues that by reason of the decision in the Campbell Case the city of Auburn procured the amendment of 1895 to the charter ‘making the abutting owner liable to it.’

Evidently counsel for the respondent has been misinformed in reference to the legislative history of the quoted provision of the charter. The case of City of Rochester v. Campbell was decided by this court December 2, 1890. The section quoted was originally section 113 of the charter (Laws 1879, c. 53), and was the subject of construction by the courts in Cashen v. City of Auburn, decided in October, 1885 (Memorandum decision, 22 Wkly. Dig. 387, appeal to this court dismissed 109 N. Y. 658, 16 N. E. 684).

In the Cashen Case the action was brought against the city and lot owner to recover damages for a personal injury arising from snow and ice on a sidewalk. The plaintiff had a verdict at the Trial Term; exceptions were ordered heard in the first instance at the General Term. The city in that case contended that under section 113 of the charter, the present section 99, the duty of repairing sidewalks and keeping them clear of snow and ice was upon the owner or occupant of abutting lands, and not upon the defendant the city, and a right of action is given against such owner or occupant for injuries sustained consequent upon a breach of that duty and not against the defendant the city. Upon a review of the case at the General Term an opinion was written by then Justice Haight, afterward a member of this court for many years. The opinion has never been reported, the memorandum of the case in the Weekly Digest being, as indicated, a mere memorandum. In the course of the opinion written by Justice Haight, referring to section 113 and a contention of the city thereunder, the opinion stated:

‘Very true, the party suffering an injury may doubtless pursue either the city or the individual owning or occupying lands abutting upon the street. It is quite possible also that the individual owning or occupying the lands abutting upon the...