City of New York v. Brown

This action was brought to recover a penalty from the defendant for a violation of section 690 of the revised ordi

“Every owner, lessee, tenant, occupant or person having charge of any building or lot of ground in the city of New York, shall, within eight hours after the fall of any snow, and within eight hours after the forming of any ice on. the sidewalk or in the gutter in front of any such building, or lot, remove,- or cause the same to be removed, from such sidewalk or gutter, under the penalty of three dollars for every such neglect, to be paid by the said owner, lessee, tenant, occupant or person having charge, severally and respectively; •but where such snow falls or ice forms between the hours of eight o’clock in. the evening and five o’clock in the morning, this ordinance will be complied-with by removing, or causing the same to be removed, before nine o’clock, of the morning succeeding its fall or formation; The provisions of this section shall not apply to streets or avenues in the Twelfth, Twenty-Third and Twen,ty-Fourth wards, which have not been curbed, guttered and flagged, nor to the-streets and avenues not opened according to law and the title thereto vested in the corporation of the city of New York.”

The defendant, admitting Ms failure to remove the snow, resists liability on the ground that the premises being situate in the Twelfth ward, and the avenue in front of them not being guttered or flagged, the exception in the ordinance applies, and hence that it is not incumbent on him to remove snow and ice. It will be observed that the provisions of the ordinance do not apply to streets or avenues in1 the Twelfth ward “which have not been curbed, guttered and flagged,”" and the plaintiff must, therefore, show that the conditions upon which the penalty attached clearly existed. Board v. Vanderbilt, 31 N. Y. 265 . It must establish the concurrence of three physical facts in order to charge the defendant with a violation. It must show that 7th avenue at 147th street was curbed and guttered and flagged. The absence of any one of these three prerequisites would be fatal to the enforcement of the penalty.

It is admitted that the avenue was curbed; the evidence clearly shows that it was guttered; and it is conceded that the entire width of the sidewalk was not covered with bluestone, but that there was a line of flagging four feet wide down its center. Whether that street was, as a matter of fact, flagged, is the question presented for our determination. That question must be answered in the affirmative. The corporation of the city of New York has plenary power over the making, repairing, improving, and paving the streets of the city. That power was conferred by the Dongan charter, confirmed by the Montgomerie charter, and still exists. Moore v. Mayor, etc., 73 N. Y. 238 . Flagging being a species of pavement (In re Phillips, 60 N. Y. 16 ), that plenary power extends to flagging. Prior to the consolidation act, it was held that the common council of the city were the sole and exclusive judges as to the time, mode, and manner of laying out, making, grading, and paving streets. In re Dugro, 50 N. Y. 513 . That act, consolidating all the special and local laws on that subject, invests the board of aldermen with power “to provide for regulating street

The appellant urges that in the cases referred to the element of •estoppel on the city, and not the actual physical situation, was the pivotal point on which the decisions turned. Thus, he claims that In the Garvey Case, supra, which was a proceeding to assess abutting property owners for an alleged new flagging of the sidewalk, when an fact four feet of flagging had been previously laid under an ordinance providing for the “curbing, guttering, and flagging” of the ■street, the decision of the court of appeals, declaring these four feet to constitute a flagged sidewalk, proceeded on the theory that the city, having once declared the street to be flagged, and having levied an -assessment therefor, was thereafter estopped from asserting that widening the stoneway was a new sidewalk, and thus dispense with the preliminary petition of the property owners, which was a condition -precedent for a repavement. Laws 1873, c. 757, § 6. In other words,

The only further defense pleaded was former adjudication. To sustain that plea, the defendant introduced in evidence a copy of the ■summons and of his answer in a prior proceeding instituted by the city to recover from him a penalty for a like violation of the same ordinance with reference to the same premises. The only testimony offered on this subject is summed up in the statement of the defendant: “The action was brought before Mr. Justice Davenport, in this court. The judge took the matter under advisement, and dismissed the complaint on its merits.” This was clearly insufficient to sustain that plea. The judgment roll was not introduced, nor its absence accounted for. There was no evidence that a trial was had, nor legal evidence that there was a dismissal on the merits or of any disposition of the cause. It is a well-settled rule that a former judgment does not constitute a bar to subsequent proceedings for the same cause of action, unless such judgment was rendered on the merits of the case. The judgment must therefore be affirmed.

Judgment affirmed, with costs to the respondent. All concur.