Davidson v. Mayor of New York, 54 N.Y.S. 51

Davidson v. Mayor of New York

54 N.Y.S. 51 | N.Y. Sup. Ct. | 1898

Chester, J.

An examination of, this case.leads me to the conclusion that I should follow the decision in the case of Bishop v. Mayor, 21 Misc. Rep. 598. In that case the injuries were caused by an empty ash cart, belonging to the street cleaning, department, *561while being drawn in the street. It did not appear what special duty the driver was engaged in at the time. Here it appears that at the time of the accident the driver was not engaged in cleaning streets but was employed in removing waste paper and other garbage from houses on Madison avenue. In the absence of a statute there would be no obligation resting upon the city to remove refuse from houses, but the Consolidation Act, § 704, charges the commissioner of street cleaning with the duty of removing from the city, or otherwise disposing of, ashes and garbage as often as the public health may require. This, under the principle of the case referred to, .is not a duty performed for the benefit and advantage of the city as a corporation, but is a general governmental function performed in the interest of the public health and for the general welfare of all the people. That being so, the defendant is not liable for the injuries sued for. Maxmilian v. Mayor, 62 N. Y. 162; Condict v. Jersey City, 46 N. J. L. 157.

The motion to set aside the verdict and for a new trial is granted.

Motion granted.