243 A.D. 240 | N.Y. App. Div. | 1935
A fire district known as Laurelton is one of several created under section 38 of the County Law and existing in the town
In view of the conclusion we have reached, we may disregard a number of assignments of error, to which the appellant has directed our attention. We limit our decision to the single inquiry whether section 282-g of the Highway Law imposes liability upon a town for the negligent operation of a fire truck owned and maintained, under section 38 of the County Law, by one of a number of fire districts within the township.
Prior to 1929 the common-law rule prevailing in this State accorded to municipalities certain complete defenses against tort liability. These defenses had their origin in the English doctrine of sovereign immunity. In the application of that rule our courts drew a fine distinction between torts committed in the performance of duties strictly governmental and those occurring in the exercise by a municipality of its proprietary or private functions. As to the former the municipality was exempt from all liability; as to the latter “ it may be held to that degree of responsibility which would attach to an ordinary private corporation.” (Springfield Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 53; Maxmilian v. Mayor, 62 id. 160; Augustine v. Town of Brant, 249 id. 198. Cf. Dillon Mun. Corp. [5th ed.], p. 181, § 109.) Within the field of nonliability were placed the functions of fire, police and health protection and the administration of public welfare agencies. (Lefrois v. County of Monroe, 162 N. Y. 563; Wilcox v. City of Rochester, 190 id. 137; Nichitta v. City of New York, 223 App. Div. 428, 430; affd., 250 N. Y. 530; Lacock v. City of Schenectady, 224 App. Div. 512.)
In response to a rising tide of criticism against the doctrine of sovereign irresponsibility, the Legislature in 1929 enacted section 282-g of the Highway Law (Laws of 1929, chap. 466) which provides:
“ § 282-g. Municipal liability for negligent operation of vehicles. Every city, town and village shall be hable 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
It may be noted that, although this statute has lifted the common-law immunity which had long protected municipalities, restraint still remains. The Legislature has defined with care the limitations within which municipal liability may be predicated, thereby making applicable 'the rule: “ If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed. A statute, even when it is remedial, must be followed with strictness, where it gives a remedy against a party who would not otherwise be liable. The courts will not extend or enlarge the liability by construction; they will not go beyond the clearly expressed provisions of the act.” (Sutherland Stat. Constr. § 371; Leppard v. O’Brien, 225 App. Div. 162, 164; affd., 252 N. Y. 563.)
Before considering the statute in its application to the instant case, it should be noted that within the limits of the town of Irondequoit are more than one fire district, and that in 1930 there were areas within the township where no fire district had been created. When the Laurelton district was organized the proposal came by petition to the county board of supervisors from more than one-half the taxpayers of that area. (County Law, § 38, subd. 1.) Then followed the election by the district of five fire commissioners and the purchase of the fire truck, the cost of which was paid from proceeds of an issue of bonds which were not a town obligation but were a statutory charge against the district. (County Law, § 38, subds. 2, 3, 4, 5.) Likewise the cost of maintenance and operation of the truck, including the wages paid to the driver whose alleged negligence gave rise to this action, was a district charge. (County Law, § 38, subds. 3, 5.) It is also significant that in the event the fire district is discontinued and its truck and equipment sold, the statute requires the proceeds from such sale to be first applied to the payment of any outstanding bonded debt or any other indebtedness of the fire district and the balance credited to the taxable real property of that district. (County Law, § 38, subd. 8.)
It is thus made clear to us that the Legislature intended to make the ownership, maintenance and control of district fire apparatus a,
In applying section 282-g of the Highway Law to the facts of the instant case we interpret the word “ municipality ” and its derivatives used in the statute as referring to the town of Irondequoit. Testing the record by the terms of the statute, we find no proof that the defendant Sink was ‘‘ 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.” On the contrary, the proof is undisputed that Sink was appointed by the five fire commissioners of the Laurelton district. They owed no duty to the town of Irondequoit in the management and operation of the fire equipment under their control. They had been elected by and were responsible to the taxpayers of the limited area comprising their particular fire district. (County Law, § 38, subd. 2.) The record also shows that the fire truck upon which plaintiff was injured was not owned by the town but was purchased by the commissioners of the Laurelton district who were responsible for its operation. (County Law, § 38, subd. 3.) Finally, in the
We have thus been led to the conclusion that section 282-g of the Highway Law does not impose liability upon the town of Irondequoit for the negligence of a paid fire truck driver of the Laurelton fire district.
An indication of the legislative policy toward actions in negligence against a fire district may be found in the enactment of section 205-a of the General Municipal Law (Laws of 1934, chap. 489) which creates a liability against such a district by reason of the negligence of a volunteer fireman in the performance of his duties and directs that judgments recovered thereunder shall be levied upon the taxable property of the district. If the tort liability of a fire district is to be extended further the Legislature alone can so provide and only by language which is unequivocal. (Leppard v. O’Brien, supra, p. 164.)
The judgment should be reversed on the law and the complaint dismissed, with costs.
All concur. Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ.
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs.