287 N.Y. 283 | NY | 1942
On December 6, 1938, plaintiff while crossing Erie Boulevard West in the city of Syracuse was struck by an automobile owned by the city and operated by one of its police officers — Luebberman — who then and there was acting in the discharge of his duties and within the scope of his employment. Judgment for damages so suffered by the plaintiff was entered in his favor on the verdict of a jury against the city and Luebberman. The Appellate Division reversed this judgment and dismissed the complaint upon questions which the plaintiff now brings to this court for review.
At the time here in issue article 4 of the General Municipal Law (Cons. Laws, ch. 24) made these provisions: *286
"§ 50-b. Municipal liability for negligent operation of vehicles. Every city, town and village, notwithstanding any inconsistent provisions of law, general, special or local or any limitation contained in the provision of any city charter, shall be liable and shall assume the liability for the negligence of a person duly appointed by the governing board or body of the municipality, or by any board, body, commission or other officer thereof, in the operation of a municipally owned vehicle upon the public streets and highways of the municipality in the discharge of a statutory duty imposed upon such person or municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment. Every such appointee shall, for the purpose of this section, be deemed an employee of the municipality, notwithstanding the vehicle was being operated in the discharge of a public duty for the benefit of all citizens of the community and the municipality derived no special benefit in its corporate capacity.
"§ 50-c. Municipal liability for negligent operation of certain vehicles in the performance of duty by policemen and firemen. Every city, town and village, notwithstanding any inconsistent provision of law, general, special or local or the limitation contained in the provisions of any city charter, shall be liable for, and shall assume the liability to the extent that it shall save harmless any duly appointed policeman or fireman of the municipality for, the negligence of such appointee in the operation of a vehicle upon the public streets or highways of the municipality in the discharge of a statutory duty imposed upon such appointee or municipality, provided the appointee at the time of the accident, injury or damages complained of, was acting in the performance of his duties and within the scope of his employment. * * * No action or special proceeding instituted pursuant to the provisions of section fifty-b or fifty-c of this chapter, shall be prosecuted or maintained against the municipality and appointee, unless it shall appear by and as an allegation in the complaint or the *287 moving papers that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the comptroller, or corresponding officer, of said municipality and the appointee for adjustment, and that adjustment or payment thereof has been neglected or refused for thirty days after such presentment; * * *"
Plaintiff failed to present to the defendant Luebberman any claim or demand in the manner thus prescribed. This omission was held by the Appellate Division to be fatal to the maintenance of the action against either defendant. For that reason the complaint was dismissed upon the merits.
"Municipal corporations," said the Appellate Division, "never consented to accept liability for the negligence of their agents, officers, employees or appointees committed while in the discharge of purely governmental functions until the enactment of section
"Municipal liability for negligent operation of vehicles. Every city, town and village shall be liable for the negligence of a person duly appointed by the governing board or body of the municipality, or by any board, body, commission or other officer thereof, to operate a municipally owned vehicle upon the public streets and highways of the municipality in the discharge of a statutory duty imposed upon the municipality, provided the appointee at the time of the accident or injury was acting in the discharge of his duties and within the scope of his employment. Every such appointee shall, for the purpose of this section, be deemed an employee of the municipality, notwithstanding the vehicle was being operated in the discharge of a public *288 duty for the benefit of all citizens of the community and the municipality derived no special benefit in its corporate capacity." (L. 1929, ch. 466.)
When section 50-c was enacted as part of article 4 of the General Municipal Law in 1936, the foregoing text of section 282-g of the Highway Law was re-enacted as section 50-a of the same article.* Nobody denies that under section 50-a this action in its present shape would have been maintainable against the city as sole defendant. (See Garrett v. City ofSchenectady,
At the close of the case, the trial judge reserved decision on the motions of the defendants for a dismissal of the complaint on the ground of plaintiff's non-compliance with section 50-c. The issue as to the liability of the defendant city was then left by the judge to the jury in this way: "Now, just a word as to the City of Syracuse. Under the General Municipal Law of this State, liability is imposed *289 upon a municipality, such as the City of Syracuse, for the negligent operation of an automobile engaged in the city service, such as this was in this case. If you should find that Mr. Luebberman was negligent in the manner in which he operated the car in question on the night in question, and was responsible for the damages by reason of that negligent operation, then you would likewise say that the city was negligent and your verdict would be against both the city and Mr. Luebberman." So far as the liability of the defendant city was concerned, this part of the charge of the trial judge was a correct definition of the consequence of the foregoing provisions of section 50-a. Neither in his complaint nor in the notice of claim which he served upon the defendant city did the plaintiff make mention of section 50-c, while the facts stated in both the complaint and the notice entitled him to invoke section 50-a.
When decision was reserved on the defendants' motions, counsel on all sides consented that the trial judge should "dispose of the case after the jury comes in with their verdict, with the same force and effect as if the jury were present and carrying out the direction of the court." So — for all that now appears — effect may yet be given to the valid verdict against the defendant city, upon appropriate application to the Trial Term.
Plaintiff has not made the point that the defendant Luebberman on his part was not entitled to more than a dismissal of the complaint as on a nonsuit. (Cf. McCammon v. Kaiser,
As to the defendant city of Syracuse, the judgment should be reversed and the action against that defendant remitted to the Trial Term for further proceedings in accordance with this opinion, with costs in all courts to the appellant to abide the event. As to the defendant Hyacinth J. Luebberman, the judgment should be affirmed, without costs. (See Cohen, Powers of the New York Court of Appeals, § 171.)
LEHMAN, Ch. J., FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment accordingly.
