MacMullen v. City of Middletown

We are required to determine the constitutionality of section 30 of the charter of the city of Middletown, which provides:

“But no such action shall be maintained for damages or irijuiies to a person sustained in consequence of the existence of snow of ice upon any‘Sidewalk,

cross-walk or street, unless written notice thereof, relating to the particular place, was actually given to the common council and there wa's a failure or neglect to cause such snow or ice to.be removed and the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.” Laws 1902, p. 1367, c. 572.

And we are to determine this question without the aid of any direct authority on' the proposition. McNally v. City of Cohoes, 53 Hun, 202 , 6 N. Y. Supp. 842 , is not, as supposed, analogous. ' The statute there construed exempted the city from liability, unless actual notice of the dangerous or obstructed condition of the street or sidewalk should have been given to the common council of the city, at least 24 hours previous to the injury, and, while the General Term held that “notice given” implies a “giver,” and that the statute was not satisfied by proof of actual knowledge, the Court of Apoeals ( 127 N. Y. 350 , 27 N. E. 1043 ) placed its affirmance upon the distinct ground that actual notice could be established by either direct or circumstantial evidence, and that, if the defendant’ had actual information, intelligence, or knowledge of the dangerous conditions, the requirements of the statute were complied with, and to the like effect are the subsequent cases bearing on this question. Smith v. City of Rochester, 79 Hun, 174 , 29 N. Y. Supp. 539 , affirmed on the opinion of the General Term, 150 N. Y. 581 , 44 N. E. 1128 ; Sprague v. City of Rochester, 159 N. Y. 20 , 53 N. E. 697 . Perhaps the case nearest in point is Gray v. City of Brooklyn, 2 Abb. Dec. 267, which held valid a provision of the charter of the city of Brooklyn which exempted the city from liability for any nonfeasance or misfeasance on the part of the common council or any officer of the city, or appointee of the common council, and pro-, vided that the remedy of the party aggrieved for such nonfeasance or misfeasance should be against such officer; but this case is not an’ authority here, for two reasons: First, said statute was construed to have the effect of relieving the city of the duty of caring for the streets theretofore imposed upon it, and of devolving such duty on said officers, which is not the effect of the statute now under consideration, because it leaves the duty on the city; second, Gray v. City of Brooklyn has been overruled by subsequent decisions holding that the act did not have the effect of relieving the city from liability for the nonperformance of the primary duty imposed upon it respecting the care of its streets and bridges, but that said statute only applied to such duties as were primarily imposed upon the officers. Fitzpatrick v. Slocum, 89 N. Y. 359 ; Hardy v. City of Brooklyn, 90 N. Y. 435 , 43 Am. Rep. 182 ; Bieling v. City of Brooklyn, 120 N. Y. 98 , 24 N. E. 389 .

It is suggested that the statute under consideration might be satisfied by proof of actual knowledge. It is easy to see how a statute requiring notice is satisfied by proof of knowledge, but it is difficult to see how “knowledge” can be substituted for “written notice.” The canon of construction “that a thing which is in the letter of the statute is not within the statute itself, unless it is within the intention of the makers,” has justified many judicial departures from the strict letter of statutes, but it is difficult to find in it excuse for saying that an intention unmistakably expressed did not exist. The effort to discover some relief from the injustice of this statute results from the fact that it shocks

In order to decide this question, we must first determine the nature of the liability of cities and villages for omission to discharge the duty imposed upon them respecting the care of their streets resulting in injury to individuals. Fortunately this question is easy of solution. In the opinion of Selden, J., found in the note to Conrad v. Trustees of Village of Ithaca, 16 N. Y. 158 , the principle is stated:

“That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases, the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.”

A distinction exists in this state between duties imposed upon the municipality for its private or local interests and those imposed upon officers appointed or elected by it for the benefit of the public generally. In the one case, the municipality is regarded as a legal individual, the same as a private corporation, exercising powers for its corporate and individual benefit; in the other case, as a political division of the state, exercising sovereign power. In the one case, the primary duty is on the municipality, which is liable to a person injured by its breach of duty. In the' other case, the duty is on the officer who is liable for either nonfeasance or misfeasance. In the one case, the rule respondeat superior applies to the corporation; in the other, to the officer primarily charged with a ministerial duty. This distinction is made clear by many authorities in this state, among which are: Maximilian v. Mayor, 62 N. Y. 160 , 20 Am. Rep. 468 ; Ham v. Mayor, 70 N. Y. 459 ; Ehrgott v. Mayor, 96 N. Y. 264 , 48 Am. Rep. 622 ; Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46 , 42 N. E. 405 , 30 L. R. A. 660 , 51 Am. St. Rep. 667 ; Missano v. Mayor, 160 N. Y. 128 , 54 N. E. 744 ; Martin v. Mayor, 1 Hill, 545 ; Bailey v. Mayor, 3 Hill, 531 , 38 Am. Dec. 669 ; Rochester White Lead Co. v. City, 3 N. Y. 463 , 53 Am. Dec. 316 ; Lloyd v. City, 5 N. Y. 369 , 55 Am. Dec. 347 ; Quill v. City of New York, 36 App. Div. 476 , 55 N. Y. Supp. 889 ; Fitzpatrick v. Slocum, supra; Bieling v. City, supra. Whatever may be said of the reasons which have moved the courts to resolve particular duties under the one or the other of said classes, it is settled beyond dispute that the duty of caring for its streets belongs

At the threshold of the investigation it’ is proper to consider that the Constitution is to be interpreted and given effect according to its object and purposes and in harmony with the spirit of our institutions. See opinion of Chase, J., in Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648 , and of Allen, J., in People v. Albertson, 55 N. Y. 50 . It is a maxim of the common law that there shall be a legal remedy for the invasion of every legal right, and the language of Chief Justice Marshall, in Marbury v. Madison, 1 Cranch, 163 , 2 L. Ed. 60 , cannot be quoted too often:

“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. * * * The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right. If this obloquy is to be cast on the jurisprudence of qur country, it must arise from the peculiar character of the case.”

The injury suffered in this case is not damnum absque injuria, the damages are direct, not consequential — the result of a breach of duty owed the plaintiff, not the indirect effect of the performance of a lawful act. It is a familiar rule of our law that, for every duty imposed, there is a correlative right to have it performed, and that every one interested in its performance may recover his. damages suffered by its breach. Pauley v. S. G. & L. Co., 131 N. Y. 90 , 29 N.

Under this statute the grossest culpability of the defendant, the plainest breach of its duty, the clearest actual knowledge on its part, give no remedy for the wrong, except for the chance of a written notice, which nobody expects will be given. This is equivalent to a denial of any remedy, and it is unnecessary to cite authority upon the proposition that, what the Legislature cannot directly do, it cannot do by indirection. Does the constitutional guaranty .against the deprivation of life, liberty, or property without due process of law apply to such a case ? The following quotations will show how sacred this constitutional guaranty is regarded by the courts, and with what liberality it is construed to protect those rights for the preservation of which government was established : This clause in the bill of rights is to have “a large and liberal interpretation,” sav the court, per Andrews, J., in People v. King, 110 N. Y. 423 , 18 N. E. 245 , 1 L. R. A. 293 , 6 Am. St. Rep. 389 , “The fundamental principle of free government, expressed in these words, protects not only life, liberty, and property, in a strict and technical Sense, against unlawful invasion by the government, in the exertion of governmental power in any of its departments, but also protects every essential incident to the enjoyment of those rights.” “The term ‘liberty,’ as protected by the Constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but

In the light of these utterances, can it be possible that the Constitution does not guaranty a remedy for a wrongful injury to one’s person? If not, what becomes of our vaunted security in person and property? Would a law, providing that a person should not have a civil remedy for an assault, be constitutional? No one will argue that it would. Does it make any difference what the particular breach of duty happens to be which results in personal injury? Violated duty is the basis of all actions of this character, and, in determining this question, we must not at any stage of the discussion lose sight of the fact that the defendant is an individual whose violated duty has injured the plaintiff. Suppose the act had provided immunity to the defendant from the consequences of a trespass resulting in injury to private property, would any one contend that it was valid? Manifestly such an act would authorize the taking of property without due process of law. Is it possible that the Constitution regards one’s person as less sacred than his property? “We do not think it is competent for the Legislature to deny, for any cause, to a party who has been illegally deprived of his property, access to the constitutional courts of the state for relief. If,, as we have seen, he is denied all remedy for the wrong inflicted upon him, the deprivation

To be sure, the plaintiff’s cause of action had not accrued when the act' was passed, but, if he did' not then have a vested right in the particular cause of action, he did have a vested right to be secured from wrongful injury to either person or property. It will not be argued that the Legislature could deprive a person of all remedy for injuries already sustained. That would be the taking of property. Can it matter whether immunity is granted to the wrongdoer in advance of the injury, or whether the person wronged is deprived of a remedy after the infliction of the injury? In the one case property is taken, in the other, one’s right to personal security is invaded. It is conceded by the demurrer that thé defendant is a wrongdoer. The statute has not attempted to lessen its duty of caring for its streets. This duty was thus, in an early case, described by Chief Judge Nelson: '

“It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly. As such, they,are bound to repair bridges, highways, and churches, are liable to poor rates, and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject.” Bailey v. Mayor, etc., of the City of New York, supra.

Speaking of the breach of this duty, Judge Earl, in Fitzpatrick v. Slocum, supra, said:

“There must be a remedy in such a case, where one is injured without fault of his own by a defect in one of the streets or bridges of the city, either against the city or some one of its officers.”

If it is desirable to relieve municipalities of the obligation to respond to one injured without fault by reason of a defective condition of the streets, the duty of caring for the streets should be taken from the city and should plainly be devolved upon some officer who can be held accountable for his nonfeasance. But, unless we are prepared to overturn the principle now firmly fixed in the jurisprudence of this state that a voluntary municipal corporation must respond for a- breach of this duty, upon the same theory as an individual is required to respond for

The interlocutory judgment overruling the demurrer should be affirmed, with costs.

All concur.