72 N.Y.S. 104 | N.Y. App. Div. | 1901
Lead Opinion
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by falling into a hole in one of the highways of the defendant village, and the defendant demurs to the complaint, alleging that it does not state facts sufficient to constitute a cause of action, in that the complaint shows upon its face that the plaintiff did not file with the clerk of the village, within forty-eight hours of the accident, the notice required by section 82 of chapter 529 of the Laws of 1896, constituting the charter of the village of Port Jervis. A similar question was presented in Green v. Village of Port Jervis (55 App. Div. 58), where it was held that a notice served within five days of the time of the accident, during which time the plaintiff was unable, from the effects of the injury, to prepare the notice, or to give the necessary infor
Under these circumstances, has the plaintiff a right to recover-; dOes'his right to- recover depend, in any measure, upon the pró•visions of section 82 of chapter 529 of the Laws of 1896? The provision of section 82 now under consideration is as follows : “Ho action against said village for damages for personal injuries alleged to have been sustained by reason of negligence of such village or of any departments, board, officer, agent of employe thereof, shall be maintained unless the same shall be'commenced within one year after the cause of action therefor shall have accrued, norunless notice of intention to commence such action and of: the precise time and place at which the injuries were received shall have been filed with the clerk of the village within forty-eight hours after such causé of action shall have accrued,” etc. While it is true, as suggested in Green v. Village of Port Jervis (supra), that the provision requir-
If it were entirely accurate, as suggested in a dictum of Earl, Ch. J., in Curry v. City of Buffalo (135 N. Y. 366, 370), that “ the whole matter of the maintenance of this class of actions was within the control of the legislature. It could refuse a right of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions,” there would be little doubt that the provisions of the charter of the village of Port Jervis would be controlling, no matter how unreasonable or how unjust it
It may not, at this time, be out of place to review the authorities upon this point, the dictum of Earl, Ch. J., being the only note of discord in any court of authority here, and this was so entirely unnecessary to the determination of the case then before the court that it can have no controlling weight, even if it he accepted in the sense in which it is often cited in support of the wrongful effort of municipalities to avoid their obligations to those whom they have injured by their negligence.' The confusion upon the question results, not from any doubt as to the nature of the action, but. from its application. Upon this point Dillon on Municipal Corporations (§ 761) says: “ In considering the subject of the implied liability of municipal corporations to civil actions for misconduct or neglect on their part, or on the part of their officers in respect to corporate duties, resulting in injuries to individuals, it is essential, under the authorities, to bear in mind the distinction pointed out in a former chapter, and to be noticed again hereafter, between municipal corporations proper, such as towns and cities specially chartered or voluntarily organizing under general acts, and involuntary quasi corporations, such as townships, school districts and counties (as these several organizations exist in most of the states), including therein for this purpose the peculiar organization before referred to, known as the New England town. The decisions of the courts in this country are almost uniform in holding the former class of corporations to a much more extended liability than the latter, even where the
In the early case of Mower v. Leicester (9 Mass. 247) it was held that a town was not liable in a'common-law action for damages sustained by an individual through a defect in the highways of the town. This case, and the English case on which it was based, have been generally followed in ISTew England, and have resulted in a very general recqgnition of the doctrine that without a statute giving it, no private action lies against towns or -other quasi-corporations for the neglect of duties enjoined upon them by general legislative enactment applicable to all such corporations as governmental or public agencies. But this rule of law is of limited application. It is applied in the case of towns only to the neglect or omission of a town to perform those duties which are imposed on all towns without their corporate assent, and exclusively for public purposes; and not to the neglect of these obligations which a* town incurs when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, at its request. In the latter case a town is subject to the same liabilities, for the neglect of these special duties, to which private corporations would be, if the same duties were imposed or the same authority conferred on them — including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents. (Bigelow v. Inhabitants of Randolph, 14 Gray, 541, 543; Oliver v. Worcester, 102 Mass. 489, 500, and authorities there cited.) Continuing this subject Dillon (at § 764) says: “ But as respects municipal corpo
Again, at section 778 (original edition), this same authority says: “ The doctrine may be considered as established, that where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature, and is one owing to the plaintiff, or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform the duty, or for the want of proper care or want of reasonable skill of its officers or servants acting under its direction or authority in the execution of such a duty; and with the qualifications stated, it is liable on the same principles, and to the same extent, as an individual or private corporation would be under like circumstances. * * * So in respect to its failure to keep its streets in a safe condition for public use, where this is a duty resting upon it.” (See Cooley Const. Lim. [6th ed.] 302.)
In this State, in the case of Bailey v. Mayor (3 Hill, 531), Chief Justice Nelson clearly stated the distinction between acts done by the city or town as a municipal or public body exclusively for public purposes and those done for its own private advantage or emolument, and assumed, as unquestionable, that “municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways and churches; are liable to poor
■ In a note to Conrad v. Trustees of the Village of Ithaca (16 N. Y. 158) is given the opinion of Selden, J., in Weet v. Village of Brockport, which is held to lay down the principles on which the leading case was decided. In this there is a careful review of the authorities, and the conclusion is reached that “if we regard the injury to the plaintiff as the result of mere neglect to keep the highways of the village in repair, the defendants would be responsible in this action for • such neglect, upon the ground that their acceptance of the franchise granted by their charter raised an implied undertaking or contract on their part to perform that duty,. which, upon the principles referred to, enures to the benefit, of every individual interested in such performance.” In the opinion of Selden, J., in the case cited, is given the rule which makes municipal corporations liable under the maxim of respondeat superior, as follows: “ Whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power.is deemed to enure to the benefit of every individual interested in its performance.” (See Missano v. Mayor, 160 N. Y. 123, 127, where the above rule is cited with approval.)
In Storrs v. City of Utica (17 N. Y. 104), the court, in considering a charge to a jury, in which it had been laid down as the law that if, in the course of a public improvement, it became necessary for the city corporation to make an excavation in a city street so as to render it unfit or dangerous to be traveled upon, it became the duty of the _ city to take measures, either by lighting the street or otherwise to warn travelers of the danger, say: “ When a case can be found, of respectable authority, holding that a city corporation, having the exclusive control of the streets, owes to the public no duty in respect to them, and is not liable for accidents occasioned by gross neglect, then some progress will have been made in the argument for exonerating the defendant from liability for the injuries now in question.
To the same effect see Lloyd v. City of New York (5 N. Y. 369, 374, 375.)
In Maxmilian v. Mayor (62 N. Y. 160) the distinction between the duties which belong to the municipality, and those which are merely a part of the administration of government, is clearly pointed out, and many of the authorities are collected. The rule is here stated to be that where the duty is upon the city itself and not upon public officers appointed by it, where it accepts the duty and the power to perform it, and itself, by its own agents, sets about the work, or undertakes to set about it-by its own agents, then, for negligent omission to do or for doing in a negligent manner, it may be liable. The court adds, upon the authority of Conrad v. Trustees of the Village of Ithaca (supra) that the duty of keeping in repair streets, bridges and other common ways of passage, and sewers, and a liability for neglect to perform that duty, rests upon an express or implied acceptance of the power and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own corporate act.
In Bieling v. City of Brooklyn (120 N. Y. 98) the court recognize that “ there are various duties which are legitimately those of the corporation, amongst which is that of taking care of the streets within it,” and it Was said that the city would be responsible for the consequences resulting from their negligent action or omission in that service injuriously to individuals. The court in this case recognized the fact that the action for negligence is one at common law, for it is said (p. 107) that “ this is in harmony with the common-law rule applicable to municipal officers who are charged with the performance of' corporate duties and may employ subordinates to aid in their accomplishment. The corporation in such case, and not he, is the superior, and liable to third persons for the injuries occasioned to them by the negligence of such subordinates.” (See, also, Nagel v. City of Buffalo, 34 Hun, 1, 4, where the court say: “ His cause of action is not given by any statute, but is founded on the principles of the common law.”)
In Fire Insurance Company v. Village of Keeseville (148 N. Y. 46) it is said that when we find that the power conferred has relation to public purposes and is for the public good, it is to be classified as governmental in its nature, and it appertains to the corporation in its political character. But when it relates to the accomplishment of- private corporate purposes, in which ¡the public is only indirectly concerned, it is private in its nature, and the municipal corporation, in respect to its exercise, is regarded as a legal individual. In the former case the corporation is exempt from all liability, whether for non-user or misuser, while in the latter case it may be held to that degree of responsibility which would attach to an ordinary private corporation. Where a duty specifically enjoined upon the corporation, as- such, has been wholly neglected by its agents, and an injury to an individual arises in consequence of- the neglect, the corporation will be held responsible.
In Reed v. Home Savings Rank (130 Mass. 448) the court say ■ “ It is too late to discuss the question, once much debated, whether a corporation can commit a trespass, or is liable in :an action on the case, or subject generally to actions of tort as individuals are. The books of reports for a quarter of a century show that a very large proportion of actions of this nature, both for nonfeasance and for misfeasance, are against corporations. * * * Their powers and their duties áre defined by their charters, and the rights and the duties are legal rights and duties, to be enforced by the ordinary rules of law. * * * It can no more permit a dangerous pitfall or a dangerous obstruction to exist upon its land to the injury of another than can any-other corporation or an individual. In its business transactions with individuals it is subject to the same rules of law as other corporations or individuals.” (See National Bank v. Graham, 100 U. S. 699, 702; Fogg v. Boston & Lowell Railroad, 148 Mass. 513, 516; Nims v. Mount Hermon Boys' School, 160 id. 177.)
It will thus be seen that the common-law rule with reference to corporations is the same as that laid down by the Constitution of this State (Art. 8, § 3) ; they are to “ have the right to sue and shall be subject to be sued in all courts in like cases as natural persons,” and -the distinction which is made between quasi-public corporations and municipal corporations proper is no exception to the general rule recognized by the common law. A natural person acting in a governmental capacity cannot be sued in the courts of this State with respect to his duties as a part of the government, because the government itself cannot be sued, and the same limitation applies to a quasi-public municipal corporation. The whole proposition is concisely stated by the court in Water Company v. Ware (16 Wall. 566, 573) where it is said : “ Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travellers, and if they neglect so to do in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person as a traveller receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want of repair in the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public, and, consequently, if one person might sue for Ms proportion of the damages for the non-performance of the duty, then
The common law of England is derived from immemorial usage and custom, originating from the acts of Parliament not recorded, or which have been destroyed or lost. It is a system of jurisprudence founded on the. principles of justice, and in the United States.
In the case of Westcott v. Fargo (61 N. Y. 542, 551), where by contract with an express company it was provided that no claim for damages would be allowed unless made in writing within thirty days, the court say: “Had we come to the conclusion that the clause was a condition precedent, the question would have been open to consideration whether so short a time was reasonable.” And the courts have generally held that the question of whether such statutes were reasonable was a judicial one, and that an intention to change the rule of the common law will not be presumed from any doubtful statutory provisions, the presumption being that no such change is intended unless the statute is clear and explicit in that direction. (Jones v. City of Albany, supra.)
The right of action which vested in the plaintiff under the Constitution and the common law (for the facts alleged in the complaint must, for the purposes of the demurrer, be taken as true) is property ; it has value (Hein v. Davidson 96 N. Y. 175, 177; Stat. Const. Law [Laws of 1892, chap. 677], §§ 2, 4; Brannon’s Fourteenth Amendment, 118; Bennett v. Bennett, 116 N. Y. 584, 598.) In the last case cited it is said that “ while a right of action for a perr sonal injury may not be within the definition, as frequently given, of a chose in action, that term in its broadest sense does embrace it.” Looking at this right of action, vesting in the plaintiff under the common law, as property, we are to consider the provisions of the charter of Port Jervis as an independent statute modifying the law of the State and to determine whether the plaintiff is “ deprived of life,. liberty or property without due process of law.” (State Const, art. 1, § 6; Fed. Const. 14th Amendment, § 1.) Upon this point the Court of Appeals has declared, in the case of Gilbert v. Ackerman (159 27. Y. 118, 124), that “ the right possessed by a person of enforcing his claim against another is property, and if a statute of limitations, acting upon that right, deprives the claimant of a reasonable time within which suit may be brought, it violates the constitutional provision that no person shall be deprived of property without due process of law,” and this view is fully sustained by the authorities.
The court will take judicial notice of the fact that there was, in regard to the statute under consideration in this case, no grave or public exigency in existence which appealed to the legislature, in behalf of the whole people and for the public interests, for the enactment of a statute curtailing, to the shortest possible legal time, the right to commence actions, which right, up to the passage of tins act, was without other limitations than those imposed by the general Statute of Limitations- (Parmenter v. State, 135 N. Y. 154, 170); and the question here presented is to be considered in the light of a normal' condition of society, where a single community asks to be relieved of the responsibility which the law imposes as a condition of its incorporation, the rule being that “ whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such .individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such -neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance.”
Cooley’s Constitutional Limitations (6th ed'. p. 449) lays down what we conceive to be the true test of the reasonableness of statutes which limit the rights of persons to recover. “All limitation laws, however,” says this great author, “ must proceed oh the theory-that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law; ” and that these laws must
Due process is secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. (Caldwell v. Texas, 137 U. S. 692, 697.) In Wynehamer v. People (13 N. Y. 378, 395, citing authorities), it was said that due process of law requires “ a judicial investigation, not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question whether, under the pre-existing rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed.” If we keep in mind that the right of action asserted by the plaintiff accrued under the operation of the Constitution and the common law, there can be.no doubt that the “ right in controversy has been lawfully
In People v. Sickles (156 N. Y. 541, 547) it is said that due process of law “ means that every citizen shall have his day in court, and that lie shall have the benefit of those rules of the common law, generally deemed to be fundamental in their nature, because sanctioned by reason by which judicial trials are governed. These rules, which secure to the accused a judicial trial, it is beyond the power of the legislature to subvert. (Wynehamer v. People, 13 N. Y. 378, 447.) It is beyond its power to deprive a person of his liberty, or to deprive him of his property by mere legislation. It is not beyond the legislative power to regulate what shall be the due process of the law by which the citizen may be put upon his trial concerning his liberty or his property; provided that the statute destroys none of those safeguards to individual freedom and rights, which the people of England finally acquired for themselves and which, as part of the common law of that land, we took over and adopted in the formation of a state government. They are preserved to all persons by the Constitution of the state, and it is the duty of the judicial branch of the government to uphold them whenever brought into question.”
In People v. King (110 N. Y. 418, 423) it is said: “ It is not necessary at this day to enter into any argument to prove that the clause in the bill of rights that no person shall ‘be deprived of life, liberty or property without due process of law5 (Const, art. 1, § 6), is to have a large and liberal interpretation, and that the funda
To summarize these and many other authorities which might be cited along these lines, and to apply them to this case, it may be said that the plaintiff could not be lawfully deprived of his property in the right of action which accrued to him by reason of the negligence of the defendant without a hearing according to the rules of the law, or without a sufficient lapse of time and neglect of action to warrant the court in holding that he had waived his rights. A statute, fixing an arbitrary time, without any reference to the condition of the plaintiff, is not due process of law. He must have an opportunity to be heard, and this opportunity cannot be limited in such a manner as to defeat his rights without any volition on his part, or any neglect of that reasonable diligence which a suitor is bound to exercise in pursuit of his rights. The question of what is reasonable time must be answered in view of all the facts surrounding the plaintiff at the time of the accident and subsequent thereto, and is not to be decided with reference to the bare fact as to whether sufficient time was allowed for a swift individual to make out the papers and, setting out at once, find and serve upon the defendant the process necessary to commence the action. (Parmenter v. State, 135 N. Y. 154, 167.)
In the case cited the rule' was recognized and asserted that statutes which bear only upon the time in which to bring actions have been held to affect only the remedy upon contract as distinguished from its obligation, provided a reasonable time were left in which a party might commence his action after the passage of the statute (pp. 166, 167, citing authorities), and it was held that “ If the curtailment of the right to file a claim is to be regarded as the same in effect as the shortening of a statute of limitation, I think there can be no doubt that in such a case as this, an act which leaves a period of less than eight weeks after its passage in which to commence an action, which right was before unlimited as to time, would not leave a reasonable time in which to learn of the passage of the statute, elect what course to pursue, and having made the
It is true, of course, that the clause of the charter of the village • of Port Jervis was in effect at the time of this accident, but as the right of action accrued under the Constitution and the' common law, the clause in question must be deemed to have been an independent statute limiting the right to file the claim or notice of intention of bringing the action, and as such it is within .the reason’of the rule as asserted in the case cited. It does not afford the plaintiff a reason^ able time in which to make liis election of what course to pursue. While yet his injuries have remained undeveloped, so that it is' impossible for him to have any intention, the period fixed by the statute passes, and when the extent of his injuries become known,. he is without a remedy if this provision of the charter is to be sustained.
It is a general rule that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of that duty causing damage gives a cause of action. Duty and right are corelative, and where a duty is imposed there must be a right to have it performed. (Willy v. Mulledy, 78 N. Y. 310, 314, and authorities there cited.)
In Berry & Johnson v. Ransdall (4 Metc. [Ky.] 292; cited, Parmenter v. State, 135 N. Y. at 169) it was held that a statute limiting the time to commence actions on existing causes of action to thirty days, was unreasonable and invalid. (See authorities there cited and discussed.)
In Moline Plow Co. v. Witham (52 Kan. 190; 34 Pac. Rep. 752) it was held, under a statute which provided that instruments evi
In the case of Jennings v. G. T. R. Co. (127 N. Y. 438) the plaintiffs had entered into a contract with the railroad company for the transportation of a quantity of potatoes, aggregating several carloads. Among the conditions of the contract was one that “ no claim for damage to, loss of or detention of any goods for which this company.is accountable shall- be allowed unless notice in writing and particulars of the claim for said loss, damage or detention are given to station freight agent at or nearest to the place of delivery within thirty-six hours after the goods in respect to which said claim is made are delivered.” 27o such notice was given. Upon appeal the court say (p. 451) : “ The time in which the condition required notice to be given might not include more than twelve business hours to ascertain the requisite particulars of the claim for the purpose of the notice. It is easy to see that the specified time of thirty-six hours would be inadequate to the necessity that might exist in a case like the one under consideration. The conclusion was permitted that, in view of the character and extent of the property and the nature of the claim for damages, which might and did arise, the time specified within which to give notice with particulars was quite unreasonable; and, therefore, and for that reason the condition in that respect was inapplicable to the shipments in question, and the failure to give such notice was no bar to the remedy.”
If the court could ignore the terms of a written contract between parties, there would seem to be no reason why, under the facts alleged by the plaintiff, where the damage is suffered through the wrongful act of the defendant, there should be any difficulty in sustaining the right of the plaintiff to recover, notwithstanding the failure to give the required notice. It could not have been the purpose of the Legislature to deny to a party injured by the negligence of the village any remedy against it, nor to unnecessarily embarrass parties in the enforcement of their rights (Sheehy v. City
“The obligation of a municipal corporation,” say the court.in People ex rel. Reynolds v. Common Council (140 PI. Y. 300, 307),. “ cannot be impaired by restraining its power of taxation to the point, of. disabling it from performance, or by a repeal of the law under which the obligation was to be enforced, or by enacting statutes of limitation that do not allow a reasonable time for bringing the action any more than by open and avowed assaults upon the contract itself; ” and we know of no reason why the same rule does-not apply in the-matter of a tort.
While it is, perhaps, unnecessary to go further in this, discussion, it may not be out of place to call attention to the fact that the Constitution of this State, as amended in 1894, provides (Art. 1, § 18) that “ the right of action now existing to recover damages for injuries resulting in death, shall never be abrogated,” and that the right of action then existing is to be found in section 1902 of the Code of Civil Procedure, which provides as follows: “ The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of. kin, may maintain an actioti to recover damagés for a wrongful act, neglect, or default, by .which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of
In determining whether a statute is unconstitutional, the question is not whether the result is harmful in the particular case, but whether the statute, according to its terms, will violate the provisions, of the Constitution in its application to cases which may be expected to arise (.Dexter v. Boston, 176 Mass, 247, 251); and we have shown in the present case- not only that the plaintiff will be deprived of his constitutional rights, but that in those cases which may b& expected to arise, the statute, if sustained, will serve to defeat the-guaranties of the Constitution,- and to deprive future plaintiffs of the r'emedy which the policy of the State is intended to afford them. So it is laid down in the case of City of Rochester v. West (164 NY Y. 510, 514) that “ the validity of a statute is not to be determined by what has been dope in any particular instance, but by what may be done under it. (Simart v. Palmer, 74 N. Y. 183; Oilmam, v. Tucker, 128 NY Y. 190, 200.) It is equally true that the validity of a, statute or ordinance is not to be determined from its effect in a particular case, but upon its general purpose and its efficiency to effect that end.”
Tried by this rule there can he no question that the purpose of the provision in the charter of the village of Port Jervis is obnox
The interlocutory judgment appealed from should be affirmed, with costs. • ■
Goodrich, P. J., Jerks and Sewell, Jj., concurred, Hirsohberg, J., in result, with memorandum.
Weet v. Village of Brockport (16 N. Y. 161).— [Rep.
Concurrence Opinion
I concur in the result reached by Mr. Justice Woodward that the interlocutory judgment should be affirmed. In Green v. Vil-' lage of Port Jervis. (55 App. Div. 58) we decided that the provision of the defendant’s charter in question was to be regarded as prescribing a rule of practice, and not as establishing an arbitrary limitation. Assuming, as we must, that the facts stated in th¿ complaint are true, it Would be unreasonable to apply to those facts the absurdly short period permitted for the filing of a, notice of intention to commence the action. Indeed, it may be doubted whether the period is not so short as to render its enforcement impracticable in the due administration of justice, and to defeat in many instances the purpose of the Legislature in giving the period of one year in which to begin an action. In other words, it would seem at least questionable whether a requirement that notice of intention to’ sue must he given, before the existence of actionable injury develops in the ordinary course of nature does not lack the essential element of practicability as a rule of legal procedure. This is especially true where the notice is required, as it is under the defendant’s charter, to state the injury inflicted as well as the happening of the accident and the time and place of the occurrence.
Interlocutory. judgment affirmed, with costs..
