125 N.Y.S. 534 | N.Y. App. Div. | 1910
Lead Opinion
Plaintiff seeks to recover of defendant damages for personal injuries due to a fall upon a defective walk in the city of Corning.
Defendant’s charter provides that “ The city shall not be liable for any injury caused by such highways, streets, alleys, sidewalks or crosswalks \i. e., the highways, streets, alleys, sidewalks and crosswalks of the city] being out of repair, or dangerous from snow, ice or unlawful obstructions, unless actual notice of the unsafe and dangerous condition thereof has been given to the mayor or the city clerk of said city a reasonable time before the happening of such injury.” (Laws of 1905, chap. 142, § 30.) Plaintiff’s complaint was dismissed by the trial court on the ground that it appeared from plaintiff’s opening that actual notice of the defective condition of the walk on which plaintiff fell and was injured had not been given either to the mayor or the city clerk as required by the statute above quoted.
The constitutionality of this provision of the statute must be conceded, and however harsh or unjust it may seem to be in its opera- ' tion, correction must be sought elsewhere than in the courts. (MacMullen v. City of Middletown, 187 N. Y. 37.)
Plaintiff’s claim that actual notice of the defective condition of the walk in question was given to the mayor of the city within the fair meaning of the statute is based solely upon the fact that a sidewalk inspector and one member of defendant’s board of public works did in fact know of the defective condition of the walk some considerable time before the accident; and that, as the sidewalk inspector was authorized, and it was his duty, to go ahead and repair the walk without referring the matter to the board of public works, and as the mayor was a member of the board of public works, which ' board had charge of the streets aiid alleys of the city and power to
Plaintiff’s exceptions should be overruled, motion for new trial denied'and judgment directed for defendant, with costs.
All concurred, except Williams and Kruse, JJ., who dissented in a memorandum by Kruse, J.
Dissenting Opinion
I think the complaint should not have been dismissed. It states a good cause of action. It is not necessary to show by direct evi
The duty of maintaining streets and sidewalks in the defendant. city is upon the commissioners of public works, of which the mayor is chairman. (See Laws of 1905, chap. 142, §§ 119, 124.) If a person employed by the commissioners and one of the commissioners himself had notice of the defect, as is claimed by the plaintiff, that fact, with the surrounding circumstances, in the absence of any proof to the contrary is sufficient, as I think, to show that the mayor had actual notice of the defect. Such an inference is entirely reasonable.
A motion to dismiss the complaint upon the opening practically challenges the sufficiency of the complaint (Hoffman House v. Foote, 172 N. Y. 348); and counsel’s opening should be considered in connection with the allegations of the complaint.
Furthermore, the object of requiring notice to the mayor or clerk is, that the officers whose duty it is to maintain the streets and sidewalks are apprised of the defect, to the end that the officers may make them safe. That duty is imposed by the defendant’s charter upon the commissioners of public works, as has been stated ; not upon the mayor or clerk. If the commissioners had actual notice of the defect in question, as is claimed, nothing further wuuld be accomplished by giving notice to the mayor or clerk. It seems to me that under such circumstances, it was not necessary to give notice to the mayor or clerk to make the city liable for the failure of its- officers to perform a duty which the statute imposes upon the city.
I vote for reversal.
Williams, J., concurred.
Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant, with costs.