Ahern v. Kings County — 69 N.Y. St. Rep. 104

Majority

p. 104

Michael J. Ahern, App’lt, v. Kings County et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Counties—Liability.

A county is not liable for the negligence of the board of supervisors in failing to maintain bridges in a reasonably safe condition for travel.

Appeal from a judgment dismissing the complaint.

Foley & Wray, for app’lt; George F. Elliott, for resp’t Kings county; F H. Van Vechten, for resp’t.Queens county.

The complaint of the plaintiff in this action was dismissed at the trial, on the motion of the defendant, because it failed to state facts sufficient to constitute a cause of action, and the plaintiff has appealed from the judgment of dismissal. It is stated in the complaint that the boards of supervisors of the counties of Kings and Queers conjointly built a bridge across Newtown creek, which flows between the counties of Kings and Queens, and forms one of their boundaries; that such bridge was-used by the public by permisión of the two.counties, and while the plaintiff was lawfully upon - the same, it gave way, and the plaintiff was thrown into the stream below, and received the injuries complained of in this action. Then it is averred that the injuries sustained by the plaintiff were entirely due to the faulty and defective construction and maintenance of the bridge, and various other causes relating to the unsafe condition of the same.

The question is, can the action be maintained against the counties for the recovery of the damages sustained by the plaintiff ? In this state the counties are organized for the exercise of a portion of the state government. Their power, duties, and liabilities are all conferred by the'constitution and the laws of the state, and they are all specific and limited. They possess no inherent power, and they are subject to no liability except such as is imposed by the statute. Our Revised Statutes declares that the counties, as bodies corporate, have capacity to sue and be sued in the manner prescribed by law, to make such contracts and purchases and hold-such personal property as may be necessary for the exercise of its corporate and administrative powers; that no county shall possess or exercise any corporate,powers except such as are enumerated in the chapter which regulates the subject or shall be specifically given by law, or shall be necessary to the exercise of the -powers enumerated or.given. The .powers of a county as a body politic can only be exercised by the board of .supervisors thereof, or in pursuance of a resolution by them.

In 1864, by.chapters 8 and.390 of the laws of .that year, boards of. supervisors were authorized to borrow money upon the .credit

p. 105

of their counties for the payment of war bounties, and we have been referred to no statute, and we have discovered none, which imposes liabilities upon the counties for the negligence of any of their officers if such liability results from the doctrine of respondeat superior for the reason that such officers are not agents of the county. This court is fully committed to these views, for we have decided, in another action which arose out of the same accident in which the plaintiff was injured, that the counties are not liable for the damages resulting therefrom. Albrecht v. Queens Co. The statute of 1892, chapter 686, sections 2, 3, which declares counties to be municipal corporations, has imposed no new liabilities upon the counties.

The judgment should be affirmed, with costs.

All concur.