235 A.D. 259 | N.Y. App. Div. | 1932
Plaintiff sued for the death of his wife, who was killed on the 27th day of May, 1930, by reason of the alleged negligence of a fireman of the city of New York in the operation of an automobile belonging to the fire department of the defendant and carrying the chief of battalion in response to a fire alarm. The jury rendered a verdict for $10,000.
The findings of the jury in plaintiff’s favor on the issues of negligence and contributory negligence are amply supported by the evidence. The only other question is whether the defendant is liable for the negligence of its servant in the operation of its automobile. The defendant claims that it is not liable, because the
Defendant contends that section 282-g of the Highway Law, above quoted, is a special or local act and, not having been enacted on an emergency message from the Governor, is unconstitutional. The act applies to every city, town and village where the negligence is that of a person in the employ of the municipality engaged in operating a municipally owned vehicle in the discharge of a statutory duty and within the scope of his employment. The defendant’s position is that this provision discriminates between municipalities which provide police and fire protection by reason of a statutory duty imposed upon them, and those which provide such protection, not because of statutory requirement, but of their own volition. We think this claim is untenable. There may be some municipalities in the State where police and fire protection are not required by law, but it is a matter of common knowledge that most,
In Matter of Mayor, etc., of New York (Elm Street) (246 N. Y. 72) Cardozo, Ch. J., wrote: “ We are no longer confined to the inquiry whether an act is general or local 1 in its terms.’ We must go farther and inquire whether it is general or local ‘ in its effect.’ * * * An act is not general when the class established by its provisions is at once so narrow and so arbitrary that duplication of its content is to be ranked as an unexpected freak of chanpe, a turn of the wheel of fortune defying probabilities.” Concerning the division between general and local acts, Cardozo, Ch. J., says: “ Futile is the endeavor to mark the principle of division with the precision or binding force of a codifying statute. * * * Roughly speaking, however, the principle of division,-considered merely for the purpose of a working approximation, may be stated to be this: If the class in its formation is so unnatural and wayward that only by the rarest coincidence can the range of its extension include more than one locality, and at best but two or three, the act so hedged and circumscribed is local in effect. If the same limits are apparent upon the face of the act, unaided by extrinsic evidence, or are so notorious or obvious as to be the subject of judicial notice, it is also local in its terms.”
It is obvious that section 282-g of the Highway Law is not “ hedged and circumscribed ” so as to be local in its terms and effect, inasmuch as it applies to every city, town and village in the State and to all of their varied governmental activities "under statutory enactments.
The plaintiff cites Cooper v. City of New York (233 App. Div. 820) as upholding the constitutionality of section 282-g of the Highway Law. That was an action against the city of New York by an administratrix for the death of her intestate, but it does not appear in the reported memorandum what the facts were or what negligence was charged against the city.
In the case of Snyder v. City of Binghamton (138 Misc. 259) verdicts for the plaintiffs against the defendant for the negligence of a city fireman were upheld by the trial court under section 282-g
Our conclusion is that section 282-g of the Highway Law does not violate section 2 of article 12 of the State Constitution and is valid, and that the judgment should be affirmed, with costs.
Present — Lazansky, P. J., Young, Scudder, Tompkins and Davis, JJ.
Judgment unanimously affirmed, with costs.