142 N.Y. 271 | NY | 1894
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *275 The demurrer to the alternative writ presents the question whether upon the facts alleged a duty rested upon the boards of supervisors of the counties of Kings and Queens to re-build the bridge over Newtown creek, on Maspeth avenue, where a bridge previously existed connecting the avenue in Queens county with the portion of the avenue in the county of Kings within the city of Brooklyn, and whether the remedy by mandamus in this proceeding should be awarded. The alternative writ, after reciting the facts stated in the petition, commands the boards of supervisors of the respective counties to construct a bridge over the creek at Maspeth avenue, specifying the width and other particulars conforming to the description in the act chap. 290 of the Laws of 1891, which authorized and empowered the boards of supervisors of the two counties to build a bridge at the point in question, "or to show cause," etc. The proceeding was commenced after the passage of that act, in reliance doubtless upon its validity. But it is now conceded that the act was in contravention of the constitutional provision (Art. 18, § 3) prohibiting the state legislature from passing local bills providing for building bridges, etc., and authorizing the enactment by the legislature of general laws conferring upon boards of supervisors powers of local legislation. If the only duty resting upon the boards of supervisors of the two counties in respect to the bridge in question was that attempted to be created by this statute, the proceeding must of necessity fail. But if there was an antecedent or subsequent duty imposed by other statutes now in force to re-build the bridge, and that duty is sufficiently set forth in the writ, the writ may go and that duty may be enforced, although the relator may have proceeded upon a mistake as to the validity of the act of 1891, unless upon technical objections to the form of the writ he must be remitted to a new proceeding. *276
Before considering the question of form we shall consider the primary question whether a duty is imposed by law upon the boards of supervisors of the two counties to re-build the bridge, independently of the act of 1891; that is, a duty disclosed upon the face of the writ, either absolute or conditional, which the defendants have failed to perform. It is averred in the writ that Maspeth avenue was opened as a highway in 1836; that it was the main thoroughfare of travel from the city of New York and Williamsburgh (now Brooklyn) to Queens county; that in the year mentioned a drawbridge was constructed over Newtown creek at Maspeth avenue for public travel; that the said avenue and bridge have continued as a turnpike, plankroad or as a public highway from 1836; that the turnpike and bridge company abandoned the road and bridge many years ago, and that for a period of five consecutive years (after such abandonment) the road and bridge was used as a public highway; that the bridge a number of years ago became out of repair and was taken down or destroyed, and has not been re-built, etc. These and other facts alleged in the writ sufficiently show, on demurrer, that Maspeth avenue was a public highway, and that the bridge constituted a part of the same.
The duty to repair a bridge on a highway which has become out of repair is imposed by statute upon some local authorities. Under the general statutory system of this state the duty is placed on the towns or municipalities in which they are located, and not upon counties, as in England, although many exceptions have been created by special statute. (Hill v. Supervisors ofLivingston County,
Upon the facts stated in the writ, which on demurrer are to be taken as true, we have the case of a bridge, part of a highway, over tide water which divides the counties, which has become out of repair, and the reparation of which requires that the bridge shall be re-built. The statute casts upon the two boards of supervisors the duty to make the reparation. This duty the two counties understood was imposed upon them, since they united in approving the bill which culminated in the law of 1890, but which is now conceded to be unconstitutional. The writ shows that the supervisors of Kings county have refused to pass any resolution authorizing the construction of a new bridge, and the supervisors of Queens refuse to proceed further than they have already gone. We think the demurrer was not well taken, unless some of the technical objections must prevail. The relator as a citizen of Queens county, owning property on Maspeth avenue, who is injured by the inaction of the supervisors, and who is put to inconvenience by reason of the non-repair of the bridge, is entitled to be a relator in this proceeding. (In re Baird,
The objection that under sec. 7 of chap. 907 of the act of Congress passed Sept. 19, 1890, the boards of supervisors cannot proceed to construct the bridge until the location and plans shall have been approved by the Secretary of War, may excuse them in a proceeding for contempt in case it appears that such consent has been sought in good faith and cannot be procured. We think the existence of this statute does not justify inaction and the matter can be provided for in the peremptory writ, if one shall be issued.
We think the demurrer was not well taken and the order and judgment of the General and Special Terms should, therefore, be reversed, with leave to the defendant to answer on payment of costs.
All concur.
Order and judgment reversed. *279