Landau v. City of New York

85 N.Y.S. 616 | N.Y. App. Div. | 1904

Laughlin, J.:

We are of opinion that the city is not liable for this unfortunate accident. If it had- happened before the municipal legislative body had enacted any Ordinance prohibiting the discharge of fireworks, even though authority to enact such ordinances had been granted by the Legislature, or through its failure to enforce them if enacted, it is clear that there would be no liability. The rule is well settled that a municipality is not liable for its failure to enact or enforce ordinances. (Leonard v. City of Hornellsville, 41 App. Div. 106 ; Griffin v. Mayor, 9 N. Y. 456 ; Lorillard v. Town of Monroe, 11 id. 392; Coonley v. City of Albany, 132 id. 145 ; Stillwell v. Mayor, 49 N. Y. Super. Ct. 360; affd., 96 N. Y. 649 ; Levy v. Mayor, 1 Sandf. 465.) It follows logically that no liability' can be predicated on account of the repeal of an ordinance. An ordinance may be repealed one day and enacted the following day, or a week, or a month, or a longer period later. The suspension of an ordinance is not a license to do the acts previously prohibited, but merely precludes a prosecution for the penalty during the period of such suspension the same in effect as if the ordinance were repealed. As well might it be said" that the failure to enact an ordinance is a license to the public to do all things that might be prohibited by ordinance. The . board of aldermen in enacting the ordinance originally might have excepted the fourth of July from its operation and might have excepted the display of fireworks during political parades or celebrations. Had it been so provided in the ordinance it could not' have been successfully maintained that this constituted a license from the municipality to all inhabitants to set off fireworks on the fourth of July and during political parades and celebrations, making the city responsible for any damages resulting therefrom. The situation would be in that event that the ordinance imposing the penalty and prohibiting the acts on other occasions did not apply on such occasions, and the liability as to such occasions would be the same as if the legislative power to enact ordinances had not been exercised at all. These views are sustained by numerous authorities. (Howard v. City of Brooklyn, 30 App. Div. 217; Boyland v. City, of New York, 1 Sandf. 27; Ball v. Town of Woodbine, 61 Iowa, 83; Lincoln v. Boston, 148 Mass. 578; Robinson v. Greenville, 42 Ohio St. 625; Borough of Norristown v. Fitzpatrick, 94 Penn. St. 121; McDade v. Chester City, 117 id. 414; O’Rourke v. City of Sioux Falls, 4 S. D. 47; Mayor & Council of Wilmington v. Vandegrift, 1 Marv. [Del.] 5 ; Wheeler v. City of Plymouth, 116 Ind. 158 ; Kelley v. City of Milwaukee, 18 Wis. 83 ; Hill v. Board of Aldermen of Charlotte, 72 N. C. 55.)

Nor can it be successfully maintained that the board of aldermen authorized the police to license the display of fireworks during political celebrations. It would not be competent for the board of aider-men to thus delegate legislative power; nor was this the intention of the resolution suspending the ordinance in the particulars specified. The reference to the police department was made so that the members of the police force would understand that the board of aldermen did not intend by the action taken to interfere with the exercise of such authority as was invested in the police department, or possessed by the peace officers, to preserve law and order and prevent the destruction of life and property. The police officers were left in precisely the same condition concerning the display of fireworks on the night in question as if no ordinance- had ever been enacted on the subject. Under their general police powers they were authorized to prevent the doing of an act in a public street dangerous to life or property; and to prevent this display of fireworks if in them opinion the same would constitute a nuisance or was likely to injure life or property. It does not appear that the police misunderstood the action of the board of aldermen in this regard — but of course that could not affect the liability of the city — for they did not assume to license or permit this display of fireworks. Of course the city is not liable for the acts or omissions of the members of the police force.

A fair test for determining whether there was a license from the city is to inquire whether if the members of the police force had attempted to prevent a discharge of the fireworks which was dangerous to-human life, those in charge could have presented any license or authority from the city for the acts which they were about to perform. In the case at bar, manifestly/they could not. The case is entirely unlike that of Speir v. City of Brooklyn (139 N. Y. 6), where the city was held liable for damages caused by a fire started by fireworks,, discharged under a special license from the mayor, granted pursuant, to the terms of an ordinance which prohibited the discharge of fireworks without such a license. In that case the legislative body, after determining that, the discharge of fireworks was dangerous, and prohibiting it under a penalty, assumed to license such dangerous acts on special application. Here there was no license to any of the residents or sojourners in this city. The city did not assume to permit the discharge of fireworks. It merely withdrew the penalty in certain instances for a specified period, leaving every individual or organization to the responsibility for his own acts in discharging any kind of fireworks. It did not assume to determine-that a particular place was safe for the discharge of a particular-kind of fireworks. It did not approve as safe the discharge of any kind of fireworks. ' It doubtless was not anticipated that individuals- or political. organizations would be so reckless as to discharge fireworks of a character endangering life - in public places. It is a-matter of common knowledge that there are many kinds of fireworks that may be discharged without danger to life, and such is-the character of those generally used on these occasions. The principal danger to be apprehended from the discharge of fireworks, and that was intended to be guarded against by the ordinance, was the-destruction of property by fire. It was doubtless expected that-with greater vigilance on the part of the police force on these special occasions the danger to property might be minimized and the members of a political party or organization be permitted to-show their enthusiasm in an innocent way by the discharge of ordinary harmless fireworks. It being evident that all of the material facts upon which a liability could be predicated are before us, we have deemed it proper to express our views upon the merits of the case. But the judgment would have to be reversed in any event on account of an exception to the exclusion of evidence that similar exhibitions with the same kind of bombs had for a great many years been given several nights a week at Manhattan Beach without accident, and also to the court’s refusal to submit the question to the jury as to whether this display of fireworks constituted a nuisance. The learned trial judge ruled that the city was liable as matter of law and only submitted to the jury the question of damages. The effect of this ruling was that the mere explosion constituted conclusive evidence that the acts were negligent or constituted a nuisance ])er se. The defendant, in any event, would have been entitled to show the character of the combustibles and the nature of the covering and to show the result of previous experiments with like combustibles in like quantities and casings as bearing on the question as to whether it was negligence to permit the fireworks -to be set off at the place in question or as to whether the city could be charged with permitting the creation of a nuisance. It must be borne in mind that it is not claimed that the city was setting off these fireworks. The claim is that it licensed the political organization to do so.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred ; Patterson, J., concurred in reversal on grounds last stated in this opinion.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.