90 N.Y.S. 473 | N.Y. App. Div. | 1904
This action was brought to recover damages for injuries alleged, to have been sustained by the plaintiff on account of the negligence of the defendants in leaving open certain hatchways, which, under the law, the defendants were obligated to keep closed. In substance the complaint avers that the defendants were the lessees and in full control of the building wherein the accident occurred; that the plaintiff was a íireman, a member of the uniformed force of the city of Hew York, and that upon the 5th day of September, 1897, he was in the building occupied by the defendants, as directed by his superior and engaged in the work of extinguishing a fire therein; that he had proceeded to the third floor of the building and, in the performance of his duty, went to a window on that floor, which was nearly directly beneath the hatchway through which the elevator was operated, when suddenly the cables of the elevator broke and it descended from the floors above the hatchway, which had negli
This provision was carried into section 761 of the Greater New York charter (Laws of 1897, chap. 378), the only change being that
The cause of action, therefore, if it exists at all, must be found in the statutory provision both as to the duty imposed and the remedy for the enforcement of the obligation created. By the terms of the act a cause of action is created for a breach of the duty imposed by the statute, but by its express terms the remedy for the enforcement of claims arising out of a breach of the obligation was vested by the statute in the board of fire commissioners under the Consolidation Act, and in the fire commissioner under the provisions of the charter. It has long been the settled law that where a statute confers a right and therein prescribes a particular method of procedure for the enforcement of it, such provision furnishes the exclusive remedy and must be followed (Dudley v. Mayhew, 3 N. Y. 9), and this rule has received uniform approval (Heiser v. Mayor, 104 id. 68; Matter of N. Y., L. E. & W. R. R. Co., 110 id. 374; People ex rel. Hatzel v. Hall, 80 id. 117). As no duty was imposed upon the defendants, independent of this statute, and as there existed no liability at common law, it necessarily follows that the plaintiff was remitted to the statutory remedy, and whatever liability existed can only be enforced in the manner therein prescribed.
It follows that the plaintiff is without standing to maintain his action. The judgment dismissing the complaint should, therefore, be affirmed, with costs.
Yah Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment affirmed, with costs.