43 N.Y. 399 | NY | 1871
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *402 In this court, the appellants make four points: 1st. That the respondents were not entitled to damages, by reason of the removal of the Hamilton street bridge. 2d. Nor for the taking of lands near their's, by which their's were rendered less convenient for dockage and unloading, and thereby less valuable. 3d. Nor for injuries alleged to have been sustained by digging too close to their lands, and undermining their foundations. 4th. That there is no privity between the respondents and the appellants, by which the last are liable in an action to the first. On reference to the complaint in the action, it is seen, that it alleges but two causes of damages in two counts; and asks relief but for those damages. 1st. The first count states a cause of action, for so prosecuting the work under the statute, as to undermine the foundation of the plaintiffs' building, and render it insecure, whereby it became necessary for them to expend a sum named, which they did expend. 2d. The second count states a cause of action, for the injury to the plaintiffs by the removal of the Hamilton street bridge, making access to their *403 property less easy and convenient, and rendering it impossible for vessels to lie there. On the trial at the circuit, all testimony on the question of damages was taken subject to objection by the defendants, the specific grounds of which they were not required to state as each question was asked, but were permitted to give as a whole at the close of the plaintiffs' case. The objections at that time stated, and the exceptions to the ruling of the court, and the positions taken on a motion for a nonsuit, and the exceptions then taken, will bring up for the consideration of this court, all the points here made by the appellants.
It is to be observed, that though evidence was given, applicable to the first count in the complaint, and tending to show damage of the nature and causes as therein alleged, no proof was made of the amount of damage resulting to the plaintiffs from the undermining of the plaintiffs' building, and thus rendering it insecure. There was proof, however, of direct damage inflicted upon the plaintiffs' building, in the tearing out of brick work, and of bearings, and of cross-beams. And there was proof of what it cost to repair the building in these particulars. And that sum, and the interest on it, the jury found for the plaintiffs, as one of the items of their verdict. The case states the verdict on that item to have been rendered "upon the first alleged ground, or cause of action set forth in the complaint."
The judgment entered upon the verdict slightly enlarges upon the allegations in the complaint, and upon the items of the verdict, thus "by the undermining of the building, and destruction of the wall." The verdict and the judgment cannot be sustained upon the first cause of action, as it is stated in the complaint, for there is no proof in dollars and cents of any damage from that cause. And although the verdict and judgment are correct in the amount, and there was proof of that amount of damage sustained, yet it was sustained from a cause not alleged in the complaint. So that the verdict and judgment cannot be sustained on that item without amendment, if such objection has been taken. This *404 testimony of the amount of damage, and the particular cause by which damage was sustained, was received without objection, other than the objections made in a group at the close of the plaintiffs' case. One of these objections was, that the evidence should be confined to the issue, and the special allegations of injury set up in the complaint. At no other stage of the case, does it appear that the defendants' counsel raised any objection, or asked for any action or ruling of the court, based upon this especial variance of the proofs from the allegation of the complaint. And the case shows that the objections were reduced to writing, and given to the stenographer of the court; nor does it appear that the attention of the judge was called to them in detail. If this objection had been singly and promptly brought to the attention of the learned judge who presided at the circuit, it would at once have struck him that the testimony was inadmissible under the plaintiffs' pleading, and he would have rejected the testimony or have directed an amendment of the pleading, or would have conformed the pleadings to the proofs. (Code, § 173.) As will appear hereinafter, the plaintiff had a right of action for that direct damage; and the testimony would fully sustain a recovery for the amount of the verdict rendered. It does not appear in the papers that the point has ever been made by the defendants, other than as above noted, that here was a variance between the pleading and the proof. In the very elaborate points of the appellants' counsel in this court, the ground is not taken that this testimony is not in accord with the allegations of the complaint, nor is the ground here taken that for the damages proven, direct and immediate, to the plaintiffs' building, thus shown by the testimony, there was not a liability to them existing against some person or body corporate. It is plain that the case has not been brought up for review on account of this variance. There will be no surprise upon the defendants, then, if we treat the case as if this objection had been waived, as we doubt not it has.
Then we come to the principal questions presented for our decision; and they are: What liability did the city assume? *405 Was there such a relation of the plaintiffs to the defendants as that an action will lie in their favor against them, and for what damages to their property can the plaintiffs recover?
The consideration of these will cover all the points made in this court by the appellants' counsel.
The work contemplated by the provisions of the statute brought under consideration in this action was a public one, to be performed by public agents, under due authority of law. No question is made but that the act is constitutional. No private property was to be taken for public use, without just compensation. The work is styled an improvement, in different sections of the act. It is to be inferred that it was an improvement in itself desirable, and one which the State was willing to undertake. It is quite apparent, however, that the agents of the State were uncertain what would be the sum ultimately needed to meet the cost and expense of the work itself, and the payment of such damages to property of private owners, as it was the practice of the State to make compensation for. So that, though the State was willing to undertake the work, and considered the doing of it as desirable, it is very manifest from various provisions of the statute authorizing it that the legislature would not sanction it without limiting the expense of it to the State, and restricting its agents to a specified sum. And, further, it is manifest that the legislative intention was that no part of the appropriation from the State treasury should be applied to the payment of damages to property, or for property taken, or to any other outlay than the cost and expense of the work itself to be done. The seventh section of the act makes the appropriation of $35,000, and provides that the expense to be incurred under the act to be paid by the State shall not exceed that sum. In the second section an incidental work is authorized, if it can be done without expense to the State. In the fourth section a subsidiary work is directed, if it can be done for a sum not to exceed $5,000, in addition to the value of the land to be reclaimed by it; which sum would come out of the appropriation of $35,000, for the last is the sole appropriation. In the fifth section *406 another like work is authorized, if it can be done without anycost or expense to the State. It will be seen from this recapitulation that there is prominent in the whole act, in all of its provisions for action of the State, this determined purpose of the legislature, while it gave authority for the work, to keep the expense to the State within a fixed limit. The legislature was also fearful of the claims for damage which would be made by owners of property. And quite as prominent in the provisions of the statute is the intention that there should be no payment by the State of damages to private owners. And it is therefore provided that the State shall not be liable for anydamage caused to property, and that before any work shall be done under the act, the city of Albany shall give formal assent to assuming such liability; and it in terms enacts that such damage shall be paid by the city. Another thing is apparent; that the State and the city of Albany were the parties to the transaction and arrangement which took definite shape in this statute. The restrictive provisions of the act were for the protection and indemnity of the State, and the provisions for the assumption of liability by the city, and the giving of its assent and obligation, were to make the city the indemnitor of the State. There is no intention to be found in it, as being its prime spirit and purpose, of providing protection, safeguard or compensation for the owners of property to be affected. The State was to be saved harmless, but no unnecessary burden was to be put upon the city. Thus, by section five, one piece of work is authorized, so that it may be done without cost, expense or liability for damages, either to the State or to the city. In other words, the State would merely permit. If the owners of property to be affected by that particular operation chose to pay the cost and expense and remit the damage to their property, asking them not of the State or city, then the work might be done by the agents of the State. So the work mentioned in section two might be done, but the State would incur no expense, and the owners of property must consent in writing to its being undertaken before it should be entered upon. The ideas prominent *407 in the legislative mind were to effect the improvement desired, without exceeding a fixed sum for the expense of the work upon it, and without the begetting of claims against the State for damages to property. The first was sought to be attained by limiting in the act the amount to be expended; the second by placing the city of Albany between the State and liability. And if there is found in the act any provision, the effect of which is to compensate owners of property, or to make good to them damages they have sustained, it is an effect following upon the prime purpose of a full indemnity to the State. It was of course recognized that the court could not take private property for public use, without a just compensation therefor, and that its agents could not inflict injury directly upon property without liability. And it was meant that, instead of the State, the city of Albany should make that compensation and meet that liability. The result, then, of the passage of the law by the legislature, and the assent of the city of Albany to its provisions, its assumption of liability and the giving of its obligation, so far as the questions involved in this action are concerned, was to put the city in place of the State, as to making compensation for private property taken, and as to any liability to claims for damages. In its general purpose and effect the act made no new rule of damages, and extended no unwonted protection to owners of property. Whether it did so by particular phrases will be hereafter considered. By the act the State would do the work. The city is then liable to pay all the damages which the State would be legally liable to pay, by reason of any lawful act of its agents, done by the authority of this statute. Now here it may be said that then the city is not liable at all, for as the State is not subject to suit by its citizens, and whatever it pays, it pays as matter of grace, there can no legal liability have arisen which the city has assumed, and against which it has indemnified. But to this there are two answers. 1st. The fact that the State is not subject to an action in behalf of a citizen does not establish that he has no claim against the State, or that no liability exists from the *408 State to him. It only shows that he cannot enforce against the State his claim, and make it answer in a court of law for its liability. What is made out by this objection is, not that there is no liability and no claim, but that there is no remedy. If the owner of the property was a citizen of another country or another State, then, but for an express restriction of the federal Constitution, the right to sue would exist, and the liability could be enforced (U.S. Constitution, Amendment XI), which shows that it is not freedom from liability which shields the State from suit, but the lack of a tribunal in which to show and enforce the liability. (Oswald, adm'rs, v. State of New York, 2 Dallas, 415.) 2d. And quite as satisfactory an answer is, that though in strictness of theory the State cannot be made by one of its citizens a defendant in an action to enforce his claim against it, yet in fact and in practice the State does recognize and admit that it may be liable to its citizens for damage to their property, done by its agents in carrying out its projects. And by general and special enactment of its legislature, it has, from time to time, provided either for direct payment, or has created a tribunal before which the claim may be litigated and by which it may be determined. Indeed, the State, as much as one of its citizens, is subject to the fundamental law, which is its organic existence, and though it may exercise its right of eminent domain, yet it cannot take private property, though for public use, without making just compensation therefor. It cannot, for an invasion of this provision, be sued directly, but its agents may be sued and enjoined. And as an abstract proposition, a liability does exist on its part to its citizen to a legal claim for damage to his property, though he may be without a tribunal to which he may cite it for redress. In this sense, then, the State might become liable to these plaintiffs, and they might have a claim against it, for just that damage to their property for which any public authority less than the State would be liable to them, which, under the sanction of this act, had done this work without willful act or malice. *409
It follows, then, that the city, by the assumption of the liability of the State and its covenant to pay and indemnify, put itself in precisely that position. It would be idle for the State, if it stood upon the ground that it could not be liable for damage, to ask and insist upon, as a condition precedent to entering upon the work, that it should be furnished with indemnity against liability. If it be said, that, as the State cannot be sued, it is practically not liable, and therefore the obligation of the city binds not, for there is nought against which it is to protect, the answer is, if the State meant to assume that position, and to say that it was not liable, then it needed not protection, and would not have sought for indemnity. The evident desire of the legislature for indemnity, its placing the freedom of the State from claim for damage in limine the doing of this work, shows that it expected claims, and meant that they should not be evaded by technicality, but fairly met. Though so far as not being subject to suit might free the State from liability for its acts, its usage has been to do full justice to the citizen in its dealings with him and his property. The legislature was conscious, that, though the State could not be summoned to the permanent and general forum, and made, by process of law, to answer to a claim, yet that there was a forum erected by practice and long legislative use, in which it was liable, and in which the State was used to respond in damages. And the effect of this act, and of the assent of the city, and of its obligation, is to put the city in the place of the State, and for the city to take on such relations to the owners of property affected by this work as the State would have borne to them were it practically liable for its dealings with them and their property and amenable to process therefor. Any claim on the part of those owners for damage to property, which a court would enforce against a body corporate acting under due authority of law, the city of Albany agreed to assume and pay, and against it to indemnify the State. We use the words, "which a court would enforce," with consideration. We are well aware, from the acts which crowd the statute-book, *410 that the legislature has gone far, and often beyond the line of legal liability, and has made provision for the hearing and payment of claims which a court of law would not entertain. But it was in the exercise of a sovereign grace; it was a bestowal of favor, not governed by rules, capricious and devious, following no well-marked and direct pathway. We are not disposed to hold that the city is bound to do all, or anything which the State might be brought to do, as gracious accord to the petition of a citizen. For what that would be, could not be foreseen. And it is not a fair assumption that an indemnity would be given against it. But what, if it were amenable to process, could be got from it by compulsion. For so much, by this act, and this assent, and this obligation is the city of Albany liable; for that might enter into contemplation, and be compassed by reasonable forethought.
The next question is, to whom is the city of Albany liable? The sixth section of the act provides that the State shall not be liable for any damage to property, caused by the making of the improvement; but that if any claim shall arise, the same shallbe paid by the city of Albany, which shall give its assent toassuming such liability and indemnifying the State against the same. So far as this action is concerned, the question above put is mainly affected by the provisions of this sixth section. The city did give its assent, and did covenant to assume the payment, and that it would pay all damages caused to property by the making of the improvement. It did thereby assume all liability, and did agree to save harmless and indemnify the State against any claim or claims arising to the property.
It is to be observed, that the instrument executed by the city to the State is not a bond. The city is not bound in a penalty, from which it may be discharged on the performance of a condition. So that the case of Turk v. Ridge (2 Hand, 206), is not applicable. The instrument is an agreement of the city, under its corporate seal, with the State, for the protection and indemnity of the State, and the payment of all damages caused to property, and by it the city doth in terms *411
assume all liability therefor. In consideration that the State would do this work, and in view of the certain result, that damage must be done to property in the doing of it, the city makes to the State this promise, that it will pay that damage. Here is the promise, the consideration and the promisee, definitely brought out. The ultimate beneficiary is uncertain. It is settled in this State, that an agreement made on a valid consideration, by one with another, to pay money to a third, can be enforced by the third in his own name. (Lawrence v. Fox,
Our conclusion is that the city became liable to the plaintiffs in this action, and that they may maintain their action against it upon the facts as they appear. The next question is, to what extent is the city liable to the plaintiffs? There are two sections of the act, the provisions of which affect the liability of the city under its assumption and obligation. The third section provides that, if certain bridges shall be injured in consequence of the improvement, such damages shall be assumed and paid by the city of Albany. The damage here indicated is one to the bridges as pieces of property, and the payment is to be made to the owners of the bridges for any injury to their property. It is not meant that damage to property other than the bridges themselves, shall be paid for, resulting from an injury to the bridge. The sixth section provides that the State shall not be liable for any damage to property caused by making the improvement, but if any claim shall arise, the same shall be paid by the city of Albany. We have already shown that the general intent of the whole act was that the city alone should take the place of the State in answering for damages caused by such improvement, and that the damage was such as would form a legal claim against the State were it amenable to process; nor do we see anything in *413 the words and phrases of this section which compel a construction more broad than that. "Damage" and "claim" are words having a well defined meaning in statutes and legal instruments. And for so much as they rightfully convey, for so much is the city bound. "What is a claim? It is, in just judicial sense, a demand of some matter, as of right, made by one person of another to do or forbear to do some act or thing as a matter of duty." (Prigg v. Penn'a, 16 Peters, 615.) The plaintiffs may claim no more of the city than the law will give them as a matter of right. The city need pay as much as the State should pay, as matter of duty. The parties are remitted, then, to the settled rules of law, to find how great is the right, how onerous the duty.
The plaintiffs' claims are of two kinds; one is for damage, direct and immediate, done to their property in the prosecution of this work. For this the city must answer. This was the damage caused in the process of tearing down the building next that of the plaintiffs'. In doing this, brick-work, and bearings, and cross-beams of the plaintiffs' building were torn out. There is no assertion or proof that this was done unnecessarily, carelessly or wantonly. It seems to have been an immediate, direct, natural and necessary result of the removal of the adjoining building, and the removal of that building was essential to the proper prosecution of the work under the act. To rebuild the brick-work torn out and repair the ends of the building of the plaintiffs, where the bearings and cross-beams were displaced, was an expense to the plaintiffs of $364.24, and for this sum and the interest on it, probably the jury gave to the plaintiffs the item in their verdict of $400.20. There is testimony, to be sure, that the excavation at the side of the building, and the jarring of it from the driving of piles near it, were injurious to it. But there is no testimony of any amount of damages from these causes, nor do we see that the jury awarded the plaintiffs anything therefor. It is not needed, then, that we determine whether damages therefrom may be lawfully claimed by the plaintiffs, so far as the verdict of the jury is to be sustained. The *414 plaintiffs further claim that the best approach to their property having been by the Hamilton street bridge, and that having been entirely removed by the agents of the State, a damage has resulted to their property for which the city is liable. No part of the bridge was on the property of the plaintiffs. They had no interest or right in it as property. There is left to the plaintiffs an approach to their property by the State street bridge, though less near, less easy, less commodious. The damage to the plaintiffs' property from this cause is entirely indirect and remote. It is not claimed to the contrary, and we shall assume that the State had right, by virtue of this act or from other source, to do this work, and in doing it to remove this bridge. The bridge, so far as the plaintiffs were interested in it, was but a part of a public street or highway. Over streets and highways the legislature has control, and may, when no private interests are involved or invaded, close them, and altogether relinquish their use by the public. (The People v.Kerr, 27 N.Y., 188-92.) And if in the exercise of this right a street be discontinued, and the value of lands abutting on other parts of the street, and on neighboring streets, is lessened, it is not such an injury to the owner as to entitle him to damages. (Smith v. City of Boston, 7 Cush., 254.)
In that case SHAW, Ch. J., says: "The damage must be the direct and immediate consequence of the act complained of, and remote and contingent damages are not recoverable. The petitioner has free access to all his lots by public streets. The burden of his complaint is that in going to some of his houses, in some direction, he may be obliged to go farther than he otherwise would. The inconvenience sustained was not such an injury done him in his property as to entitle him to damages." The case cited seems quite analogous to that under consideration. Here the sole complaint of the plaintiffs is that by the removal of the Hamilton street bridge they are forced to use the public approach to their lands by the State street bridge, and that though by this way access may be had to them, it is not so direct, so near, nor so commodious. *415
This is an injury, not the direct and immediate result of the removal of the bridge first mentioned. The removal was effected, so far as appears, with care, for the benefit of the public; and it was done by authority of the legislative act. Assuming that the statute did not by some particular provision or phraseology provide for the payment of consequential damages or such as may result to persons whose lands are not taken or immediately injured, the State would not have been liable for the damages claimed by the plaintiffs as following from the removal of this bridge, nor is the city liable. (Radcliff's ex'rs v. TheMayor,
The next position of the learned counsel for the respondent is, that the sixth section of this act recognizes the right to compensation for all "damage to property caused by making such improvements," and provides for payment by the city and not by the State; and that this section applies to consequential damages alone, from the fact that all damages for property taken were already expressly provided for by the general statute above cited, which damages were to be paid by the State. This is not tenable, for the reason already given, that the general statute, upon the existence of which this position is also based, does not apply to the result of the work under this act. And conceding, as we have, that the act does mean to care for other damages than those for land taken, still it may stop short of providing for consequential damages. It does provide for the direct damages to property *417 other than the taking of it, and thus a scope is given to it broader than a provision only for lands taken.
The next position taken by the learned counsel for the respondent is, that since the judgment in Lansing v. Smith (4 Wend., 9), by which the plaintiff obtained damages for only direct injury to his lands, the legislature has been careful to supply the omission. And quotations are made from different statutes, in which comprehensive language has been used, as in chap. 163, Laws of 1835, page 171: "all such damages as the owner of property taken, or in any manner injured or affected by any of the improvements contemplated;" and in chap. 139, Laws of 1836, page 187: "all such damages as the owner of any property taken, or in any manner, injured," etc, "injured inconsequence of the opening;" and there are the like phrases in subsequent acts. But in this act of 1866 such phraseology is not used. It is to be supposed that this statute was not adopted without a knowledge on the part of the legislature of previous legislative action on this subject. When, then, in the penning of this act, a set of narrower phrases was used, we are obliged to infer, either that it was done heedlessly, or with the purpose of imposing a stricter measure of damages. The last is the inference to which proper observance of rules of interpretation forces us. (Dwarris on Stat., 707.) We have already stated that in our view the general purpose and intent of the statutes was to impose upon the city of Albany a liability for such damages to property as could, by rules of law applicable to such a case, be rightfully claimed by an owner of property. We find nothing in the phraseology of the statute to alter that view, in favor of owners of property in general. There is, to be sure, in the third section, this phrase: "If any of the bridges crossing said basin * * * * shall be injured in consequence of the improvement * * * such damages shall be assumed and paid by the city of Albany," which is different from the phrase in the sixth section, under which the plaintiffs bring action, where the phrase is simply,"damage to property caused by the making of such improvement." *418 If we hold, as we are bound to, that this difference of words is of purpose, it strengthens the position that the sixth section was not meant to create an enlarged rule of damages, but to confine it within a narrower limit than that proposed by the third section. Stress was laid by the learned counsel for the respondents upon the phrase, "damage to any property caused," used in the sixth section. It is to be observed, that this phrase is employed where the purpose is to declare that the State shall be kept free from liability for damage. This being one of the prime ideas in the mind of the draftsman, it might well be that the words used would be quite capacious. But yet we do not see that they imply more than we have above allowed to the act in its general scope. Damage to any property means that damage which is done by an injury inflicted upon property not taken but impaired, as well as that damage done by taking and appropriating it. "Damage to any property caused," is of no wider import thandamage to any property. And more than that, the word caused is to be read with the following phrase, "by the making of such improvements," and others. It confines the damage to such as is done in the process of this particular work.
Our conclusion is, that the plaintiffs had a right of action against the defendants, for compensation for the injury direct and immediate to their property, but that they had no right of action for the depreciation in value arising from the removal of the Hamilton street bridge, which was indirect and contingent.
The judgment should be affirmed for $400.20 thereof, with interest, and reversed for $800 thereof, without costs to either party of this appeal.
All the judges concurring, except PECKHAM, J., who, having been a member of the court below, did not sit.
Judgment affirmed, to the extent of $400.20 damages, and reversed as to residue of recovery, without costs of this appeal to either party. *419
