67 N.Y.S. 276 | N.Y. Sup. Ct. | 1900
The negligence which is claimed is that the defendant failed to have the poles inspected. Even so, the plaintiff could not recover. It may not be easy in the conflict and variation of decisions in this state to state the legal principle for this; but it is settled by authority. The state cannot be sued without its consent for any negligent act or omission of its officials, or liability created by them. And this rule that sovereignty cannot be sued in its own courts prevented counties and towns in this state from being sued, for they were only subdivisions of the state government. They could be sued in such cases only where it was expressly permitted by statute. In the recent revision of our town and county laws they have been classed as municipal corporations, but this change in name probably implies no other change.
It was the law with us from the beginning, that for any negligence of town officers in the governmental matters of keeping the highways in repair, executing the health laws, and the like, the
But on whichever ground we place such municipal liability, i. e., whether on the ground of implied contract by the acceptance of their charters, as in Weet v. The Trustees, or on the ground that municipal corporations are liable to individuals for negligence in respect of the performance or non-performance of their public duties, the same as public officers, as in Adsit v. Brady, it is plain that either principle fully carried out would make them liable to actions for damages by individuals for negligence in respect of all public duties so imposed on them. They could not, consistently, as it would seem, be held so liable in respect of one public duty and not of another. In Weet v. The Trustees (as also in Conrad v. The Trustees, 16 N. Y. 158, with which it is reported as a note), such liability was declared in respect of neglect of such public duty in the making and repairing of public highways or streets. But after so deciding such general liability of municipal corporations, and making it the same in effect as in the
In Massachusetts there is no such variation of the rule, but it is consistently applied and carried out in all cases, viz., “ that no private action, unless authorized by express statute, can be main
In this state the exceptions to- the contrary rule laid down in Weet v. The Trustees have grown to he far greater than the rule itself, though our courts have all the while professed to- revere that decision; and such exceptions embrace the plaintiff’s case.
The motion for a new trial is denied.