125 N.E. 809 | NY | 1920
Plaintiff's complaint alleges in substance that a steel and concrete culvert, over a small dry creek, flowing in times of freshet, was so negligently constructed and maintained across a highway by the defendant's town superintendent of highways, in place of an adequate old wooden culvert, that on two occasions when rainstorms occurred, it was inadequate to care for the water which flowed down the creek, causing it to back up and overflow upon plaintiff's land, thus damaging her property. Does it state a cause of action?
"The common law of this state gives a right of action against commissioners of highways, who act contrary to or omit to act in accordance with their duty to a person injured thereby, and this right of action it is which the statute (L. 1881, ch. 700, now § 75 of the Highway Law) made maintainable against the town." (Flansburg v. Town of Elbridge,
The town superintendent of highways shall among other duties imposed on him in relation to the care and superintendence of highways, "construct and keep in repair sluices and culverts and cause the waterways, bridges and culverts to be kept open." (Highway Law [Cons. Laws, ch. 25], § 47.)
The question is whether the damages alleged are, in the language of the statute, sustained "by reason of any defect in (defendant's) highways or bridges, existing *462
because of the neglect of any town superintendent of such town." (Highway Law, section 74; Lynch v. Town of Rhinebeck,
Defendant contends that the commissioner (now superintendent) of highways was not liable at common law for damages to property due to acts done in the performance of his duty, of the character set forth in the complaint, and that, therefore, the town is not liable.
Prior to the adoption of the statute of 1881 above referred to, the towns were not liable for damages to persons or property caused by defective highways. The commissioners of highways were personally responsible for the negligent or wrongful performance of their duty. Their liability was carefully and wisely guarded. They did not neglect their duty to make repairs when funds were not provided for the purpose (Garlinghouse v. Jacobs,
The contention that the commissioner might, in the construction or maintenance of highways, damage property with impunity if he did not interfere with travel along the surface of the highway has no foundation in any reported case and never was the law. InWhitney v. Town of Ticonderoga (
The second question of substance in this case is thus suggested. The legislature might, in its discretion, have *464 so limited the liability of the town. Has it done so? Does the statute impose upon the town the full common-law liability of the commissioner for his misconduct or neglect if it results in a defective highway or only so much of such liability as results in an interference with travel along the highway?
The influence of phrases in opinions, forcibly taken from the context and applied to different facts, is illustrated by the result in this case. BRADLEY, J., said in the Whitney Case (supra), on the facts there presented, that "the term `defective highways' was used in reference to their condition for public travel upon them." The word "only" has been added to what he said and a general rule evolved that the town may, through the official act of the superintendent of highways, negligently construct a highway, bridge or culvert, defective in any regard other than for travel and may thereby unlawfully damage property without incurring legal liability. A construction intended to extend town liability beyond the limits that a crabbed reading of the statute might suggest has thus been distorted into a limitation upon such liability. But, as we have said, the entire right of action against the commissioner for his misconduct or neglect is now maintainable against the town. (Flansburg v.Town of Elbridge, supra.)
It is urged that the town is not liable because the culvert was carefully constructed according to plans imposed upon it by the state. The fact does not appear upon the face of the complaint. We are dealing only with the sufficiency of a pleading.
The judgments appealed from should be reversed and the demurrer overruled, with costs in all courts, with leave to defendant to answer within twenty days on payment of costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, ANDREWS and ELKUS, JJ., concur.
Judgments reversed, etc. *465