115 Misc. 35 | New York Court of Claims | 1921
The claim is for damages alleged to have 1»......- suffered by the claimant by reason of the act, .IT ult and negligence of the state of New York, in the ¡construction, maintenance and operation of the improved Cayuga and Seneca canal at Seneca Falls, whereby a large volume of water in a pool created by the state was precipitated in and upon the claimant’s sewer system and sewage disposal plant at Seneca Falls greatly damaging the same.
The argument on the part of the state was based \ upon the decision of this court in the case of Town of
The present case, however, is not brought under the Highway Law but under the Canal Law, section 47 of which provides as follows: ‘ ‘ There shall beXallowed and paid to every person sustaining damages frV>m the canals or from their use or management, or rest or arising from the neglect or conduct of any officer of the state having charge thereof, or resulting or arising from any accident or other matter connected with the canals, the amount of such damages to be ascertained and determined by the proper acti or proceeding before the court of claims.” There no similar provision in the Highway Law and except for this section of the Canal Law there could be no recovery on this claim.
The sole question presented by this motion is whether the words “ every person ” include a municipal corporation. If it does the state has waived its immunity for the damages sustained by the village of Seneca Falls, and has submitted its liability to this court for determination. The obvious purpose of thej
And in the case of Ackert v. City of New York, 156 App. Div. 840, it was expressly held as follows: “Although municipal corporations are not designated by the name, they are included in the term ‘ person ’ employed in the statute which is defined by section 37 of the General Construction Law as including corporations and joint stock companies.” While the point there under discussion was a construction of the Labor Law, the language employed is entirely applicable to the case presented in this record.
Quite a similar construction was adopted by Judge Rodenbeck in the case of O’Bryan v. State of New York, 68 Misc. Rep. 618. He then held that the expres
My conclusion is that the word “person” in section 47 of the Canal Law includes a municipal corporation, and a claim filed by a village of the nature here presented is properly a subject for adjudication by this court, and accordingly the state’s motion to dismiss is denied.
Ackersoh, P. J., concurs.
Motion denied.