Potter v. Guertze, 5 A.D.2d 924

Potter v. Guertze

5 A.D.2d 924 | N.Y. App. Div. | 1958

Defendant Town of Lloyd appeals from a denial of its motion to dismiss the complaint herein under rule 106 of the Rules of Civil Practice on the ground that it fails to state a cause of action. The matter has been before this court before (Berean v. Town of Lloyd, 3 A D 2d 585). The complaint seeks a judgment against the town for the negligence of the Town Board in the operation and maintenance of a sewer district within the town. We held before that a Town Board does not exist separately and independently from a town which it governs and that the acts of the Town Board, when performed under statutory authority, are the acts of the town. The operation *925and maintenance of a sewer district is a duty imposed by statute upon the Town Board of the town within which the district is located, and such operations and maintenance are acts of the town. Prior to the acts complained of all powers theretofore exercised by separate boards or commissions, including sewage district commissioners were vested in and required to be exercised by town boards (Town Law, § 61). Appellant here contends that before a town can be held liable its officials must be acting as town officers and that there must be a specific statute specifically declaring and imposing liability on the town. Prior to the abolition of the doctrine of sovereign immunity the rule undoubtedly was as appellant contends. Since the enactment of section 8 of the Court of Claims Act however we think that the former rule no longer applies in actions brought against a town for the negligent acts of its officials performed within the scope of their statutory authority. When the State waived its immunity the civil divisions of the State likewise waived a derivative immunity (Steitz v. City of Beacon, 295 N. Y. 51; McCarthy v. City of Saratoga Springs, 269 App. Div. 469). We do not agree with the proposition that members of the Town Board are not acting as town officials when they assume the former duties of sewage district commissioners. The powers and duties imposed by the Legislature on town boards became the powers and duties of the towns themselves (Town Law, §§ 2, 60, 64, subd. 23). By the statute cited the Legislature has seen fit to give control of special districts to town boards, except where a board of commissioners is especially created, and they are the only legal entities that may administer all of the affairs of the townships. We said in the former appeal that the town could assess any liability found against the property within the sewer district, and we can see no good reason for reversing this dictum. Order affirmed, with $10 costs. This court, on its own motion, grants permission to appeal to the Court of Appeals and certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals and certifies the following question: Does the complaint state a cause of action against the defendant town?

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.