98 N.Y.S. 145 | N.Y. App. Div. | 1906
We are required to determine the constitutionality of .section 30 of,the 'charter of the city of Middletown (Laws of 1902, chap. 572), which provides:.“ But no ’ such action shall be maintained for damages or injuries to the person sustained in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street,, unless written notice thereof, relating to the particular place, was actually given to the common council and there.was a failure or neglect to cause such snow or ice to be removed or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice,” and we are to determine this question without the aid .of any_direct authority on the proposition. McNally v. City of Cohoes (53 Hun, 202) is not, as supposed, analogous. The statute there construed exempted the city from liability unless actual notice of the dangerous or obstructed condition of the street' or sidewalk, should have been given to the common council of the city or an officer specified at least twenty-four hours previous to the injury,.and while the General Term held that “notice given implies a giver” and that the statute was not satisfied by proof of actual knowledge, the Court of Appeals (127 N. Y. 350) placed its.affirmance upon the distinct ground that actual notice could be established by either, direct or circumstantial evidence, and. that if the defendant had actual, information, intelligence or knowledge of the dangerous conditions, the requirements of the statute were complied with, and to the like effect are the subsequent cases bearing on this question. (Smith v. City of Rochester, 79 Hun, 174; affd. on the opinion of the General Term, 150 N. Y. 581; Sprague v. City of Rochester, 159 id. 20.) Perhaps the case nearest in point is Gray v. City of Brooklyn (2 Abb. Ct. App. Dec. 267) which held valid a provision of the charter of the
It is suggested that-the statute under consideration might be satisfied by proof of actual knowledge. It is easy to see how a statute requiring notice is satisfied by proof of knowledge, but it is difficult to see how “ knowledge ” can be substituted for “ written notice.” The canon of construction “ that a thing which is within the letter of the statute is not within the statute itself unless it is within the intention of the makers!’ has justified many judicial departures from the strict letter of statutes, but it is difficult to find in it excuse for saying that an intention unmistakably expressed did not exist. The effort to discover some relief from the injustice, of this statute results from the fact that it shocks . our sense :of- right and wrong and immediately suggests the inquiry whether it does not offend the fundamental law. If the Legislature had the power to impose such a condition, they have imposed it by the use of language as clear as could possibly have been used, and it seems to me, therefore, that instead, of attempting to make over the statute to fit our notions we should ascertain whether the impression created by the 'first reading of the act, that it is not in consonance with the fundamental principles of our government, is borne out by an examination of the instrument limiting the powers of the Legislature; but
In order to decide this question we must first determine the nature of the liability of cities and villages for omission to discharge the duty imposed upon them respecting the care of their streets resulting in injury to individuals. Fortunately this question is easy of solution. In the opinion of Selden, J., found in the note to Conrad v. Trustees of the Village of Ithaca (16 N. Y., 158) the principle is stated : “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public "prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such casfes the contract made with the sovereign power is. deemed to entire to the benefit of every individual interested in its performance.” A distinction exists in "this State between duties imposed upon the municipality for its private or local interests and those imposed upon officers appointed or elected by it for the benefit of the public generally. In the one. case the municipality is regarded as ,a legal individual, the same as a private corporation exercising powers for its corporate "and individual benefit;" in the other case, as a political division of the State, .exercising sovereign power. In the one case the primary duty is on the municipality, which- is liable to a person injured by its".breach, of, duty; in the other case the duty-is-on -the officeiy who is liable for either nonfeasance or misfeasance. In- the one case the rule respondeat superior applies to the corporation; in the other, to the officer primarily charged with a ministerial duty. This distinction is made clear by many authorities in this State, among which are: Maxmilian v. Mayor (62 N. Y. 160); Ham v. Mayor (70 id. 459); Ehrgott v. Mayor, etc., of City of N. Y. (96 id. 264); Fire Ins. Co. v. Village of Keeseville (148 id. 46); Missano v. Mayor (160 id. 128); Martin v. Mayor, etc., of Brooklyn (1 Hill, 545); Bailey v. Mayor, etc., of City of N. Y. (3 id. 531); Rochester White Lead Co. v. City of Rochester (3 N. Y. 463); Lloyd v.
At the threshold of the investigation it is proper to consider that the Constitution is to be interpreted and given effect according to its object and purposes and in harmony with the spirit of our institutions. (See opinion of Chase, J., in Calder v. Bull, 3 Dall. [U. S.] 386,
Under, this statute the grossest culpability of the defendant, the plainest breach o'f its duty, the clearest actual knowledge on its part, give no remedy for the wrong, except for the chance of a written notice, which nobody expects will* be given. This is equivalent to a denial of any remedy, and it is unnecessary to cite authority upon the proposition that what the Legislature cannot directly do it cannot- do'by indirection. Does the constitutional guaranty contained in section 6 of article 1 of the State Constitution and section 1 of the 14th amendment to the Constitution of the United States against the deprivation of life, liberty or property without due process of law apply to such a case ? The following quotations will show ho\v sacred this constitutional guaranty is regarded by'the courts, and with what liberality it is construed to protect those rights for the preservation of which government was established: This clause in the Bill of Bights is to have “ a large and liberal interpretation,” say the court, per Andrews, J., in People v. King (110 N. Y. 423.), and “ the fundamental principle of free government, expressed in these words, protects not only life, liberty and property, in a strict and technical sense, against unlawful invasion by the government, in the exertion of governmental power in any of its departments, but also protects every essential incident to the enjoyment of those rights.” ‘‘ The term ‘ liberty,’ as protected by the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but it is deemed to embrace the right
In the light of these utterances, can it be possible that the Com stitution .does not guarantee a remedy for a Wrongful injury to one’s, person? If not, what becomes óf our vaunted, security in person
Hooker and Rich, JJ., concurred; Jenks, J., concurred in result on the ground that the statute under the guise of regulation of the remedy really works a denial of it.
Interlocutory judgment affirmed, with costs.
Weimer v. Bunbury.— [Rep.