Fox v. Village of Fort Edward — 16 N.Y. St. Rep. 303

Majority

p. 303

William A. Fox, Resp’t, v. The Village of Fort Edward, App’lt.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Evidence—Recitals in acts of the legislature—Evidence against THE PARTY IN WHOSE INTEREST THEY ARE PASSED.

The recitals in a legislative act are evidence against the party in whose favor the act was passed.

2. Municipal corporations—General village act, chap. 29, Laws 1870 —Village of Fort Edward — Liability for unsafe sidewalks— Chap. 80, Laws 1859—Chap. 208, Laws 1884.

The village of Fort Edward was incorporated by an act of 1847, and its charter was subsequently modified by chapter 80, Laws 1859. By chapter 308, Laws 1884, it is provided that the trustees and officers of any village in this state created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within the state except as such special charters may be in conflict with any provision of the general acts. Section 28 of the act of 1847 provided that the persons entitled to vote to raise taxes in such village may by resolution direct the trustees to cause to be raised by a general tax * * taxes for certain purposes and not others. It was claimed therefore that the act of 1884 did not apply to the defendant, as the provisions of the general act of 1870, conferring power to raise money to keep the sidewalks in order, were in conflict with the provisions of the act of 1847. Held, that the villages had a special charter; that the power denied to the persons entitled under the act of 1847 to vote to raise taxes is not in conflict with the power given to the trustees independently of the resolution of the voters under the act of 1870, and that therefore the act of 1884 does apply to the village of Fort Edward, and that this village is subject to the same liability for injuries caused by its neglect to keep its sidewalks safe as is imposed by the general village act of 1870.

Appp.at. from a judgment in favor of the plaintiff entered upon a verdict at the Washington circuit; also from the order denying motion for a new trial upon the minutes.

The action was to recover for injuries sustained by the plaintiff in consequence of falling upon the ice upon the sidewalk upon Main street in the village of Fort Edward on the 23d of January, 1885.

The evidence tended to show that the sidewalk at the place in question was and had been for many days previous to the accident in a very dangerous condition.

L. H. Northup, for app’lt; J. S. L' Amoreaux, for resp’t.

We think the verdict in this case is sufficiently supported by the evidence.

p. 304

It is objected that it was not shown under what act the . defendant was incorporated, and therefore it was not shown that its incorporation imposed upon it any duty to keep its sidewalks in a reasonably safe condition for the public travel, when the obstruction is caused by snow and ice. The complaint alleged that the defendant “ is a municipal corporation duly incorporated under the laws of this state, and was at the time hereinafter mentioned.” This allegation is admitted by the answer.

Chapter 80 of the Laws of 1859, is entitled “an act to enlarge the bounds of the village of Fort Edward, make the same a separate road district, and conferring additional powers upon the trustees and taxable inhabitants of the village.” That act speaks of the village of Fort Edward “as heretofore incorporated under the act entitled “an act to provide for the incorporation of villages, passed December 7, 1847.”

This is a legislative declaration of the incorporation of the village, and the act extends its territorial limits, and confers upon it additional powers. The recitals in a legislative act are evidence against the party in whose favor the act was passed. Duncan v. Duboys, 3 Johns. Cases, 125. This act, in connection with the admission of the answer, shows that the village was incorporated under the general act of 1847, and that additional corporate powers were conferred upon it by the act of 1859. The provisions of the act of 1847 were declared inapplicable so far as inconsistent with the act of 1859. After 1859, the village was incorporated under the act of 1847, as modified by the special act of 1859. The village, therefore, had a charter peculiar to itself, that is a special charter. If, as defendant alleges, it never thereafter became incorporated under the general act for the incorporation of villages (chap. 29, Laws of 1870), then chapter 308 of the Laws of 1884 would apply to it. This act provides “that the trustees and officers of any village in this state, created by special charter, shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such special charter may be in conflict with any provision or provisions of said general acts.”

The defendant claims that it had no funds to pay for clearing snow and ice from sidewalks, and no power to raise any; since in this respect it was limited to the funds for the purposes specified m article 28 of the act of 1847, and that clearing snow and ice from sidewalks is not one of them. This section also provides that ' ‘ the persons entitled to vote to raise taxes in such village may by resolution, direct the trustees to cause to be raised by general tax * * * taxes for the following purposes and no other: ” The defendant there

p. 305

upon contends that the act of 1884, does not apply, since this provision denying power to “the persons entitled to vote to raise taxes,” to direct them to be raised for any •other purposes, is in conflict with the provisions of the general village act of 1870, conferring power for purposes of keeping sidewalks free from snow and ice, and hence the trustees are still without power.

But the power denied to the persons entitled under the act of 1847 to vote to raise taxes, is not in conflict with the power given to the trustees independently of the resolution •of the voters, and hence the act of 1884, does not apply to the village of Fort Edward, and hence also the village is subject to the same liability for injuries caused by its neglect to keep its sidewalks reasonably safe for public travel, as is imposed upon villages incorporated under the general village act of 1870.

This conclusion disposes of many of the grounds of error urged by the defendant.

The sidewalk where the plaintiff fell, was so icy and rounded that the plaintiff, as he passed along, kept one hand as much as he could upon the pickets of a fence which extended along the front of the lot next the walk; he knew it was dangerous, but he met a person coming in the opposite direction, and, as he conceived this person was entitled to keep the inside of the walk, the plaintiff removed his hand from the fence and stepped to his right to let this person pass, and upon his first step to the right, he fell and received the injury of which he complains.

The court was asked by the defendant to charge, “ that if immediately previous to and at the time he let go of the fence and stepped out, he knew there was ice there, and he also knew it when he entered upon the walk, he took the risk of passing and cannot recover.”

We think this request was properly refused. It implied that the act of the plaintiff in going upon the walk at all, or letting go of the fence to let another pass him, was wholly inexcusable under any aspect of the case presented by the evidence.

At best, all the defendant could rightly claim, was that the jury should consider and decide whether the plaintiff’s act was negligence or not. Two persons could not pass each other without one or the other taking bis hand off the fence and getting out of the other’s way. This sidewalk was certainly in a very unsafe condition, and had been for a. long time.

We see nothing in the case of Taylor v. The City of Yonkers ( 105 N. Y., 202 ; 7 N. Y. State Rep., 332), at variance with the recovery in this case.

p. 306

The plaintiff upon cross-examination as a witness testified that he had walked in the street before the accident,' and not on the sidewalk. It was proper for him, upon direct examination, to show he returned to the sidewalk, lest it should be urged against him that he had voluntarily-incurred a danger which he had previously taken pains to-avoid. He returned to the sidewalk because he had seen a foot passagér, in the street, knocked down by a passing team. It was undoubtedly proper for the jury to decide whether he was negligent in his choice between two dangers.

We think the judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.