Leman v. Mayor — 18 N.Y. Super. Ct. 414

Majority

p. 414

Michael L. Leman, Plaintiff and Respondent, v. The Mayor, Aldermen, &c., of the City of New York, Appellants.

Headnote

1. The Mayor, Aldermen and Commonalty of the city of New York, since . the passage of the act entitled “An act to make permanent the grades of the streets and "avenues of the city of New York,” passed March 4, 1852, cannot, even under the authority of an ordinance passed by both branches of the Common Council and approved by the Mayor, change the grade of ■ any street in said city, established by law when said act was passed, south of Sixty-third street, without becoming liable to the owner of any lot or building on the street so altered, for all damages caused to him, as such owner, by reason of the making of such change of grade; unless such change is made upon the written consent of the owners of at least two-thirds of

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the land in lineal feet fronting on each side of the street opposite to and adjoining that part thereof the grade of which is to be changed or altered, 2. By the terms of that act it is declared that it shall not be lawful for the Common Council of the city of New York to change such established grade, without such consent; if therefore they make such change and the defendants by their agents proceed to carry it into actual execution to the injury of the owners of lots on the street, the city is liable for the damage sustained.

(Before Hoffman and Woodruff, J. J.)

Heard, November 7th;

decided, November, 27th, 1859.

This is an appeal by The Mayor, Aldermen and Commonalty of the City of New York, the defendants, from a judgment in favor of Michael L. Leman, the plaintiff, rendered on the report of Hon. John L. Mason, as Referee.

The plaintiff is the owner of a lot on Pearl street, New York city, and the building thereon, fronting on Pearl street, and was at the time the acts hereinafter stated were done.

In April, 1857, the defendants, by an ordinance which passed both branches of the Common Council and was approved by the Mayor, directed the grades of Pearl and other named streets to be changed; that the work be done at the expense of the defendants ; and appointed three assessors to make a just and equitable assessment of the expense among the owners of lots to be benefited thereby, in proportion as nearly as may be to the advantages which each may be deemed to acquire.

The defendants made such change of grade without the plaintiff’s consent, and without the consent of the owners of two-thirds of the land in lineal feet, fronting on and adjacent to such change of grade as required by the act of the Legislature, .entitled “ An act to make permanent the grades of the streets and avenues of the city of New York, passed March 4th, 1852.”

In making such change of grade, the street was dug down three or four feet below the original grade in front of the plaintiff’s premises; and such change of grade was injurious to the plaintiff; and made expenditures by him necessary, to adapt the house and lot to the new grade; whereby the plaintiff sustained damage to the amount of $826.57.

The Referee held the defendants liable, and decided that the plaintiff recover from them the damages aforesaid. From the judgment entered on that decision the present appeal is taken.

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Moses Ely, for appellants.

I. Plaintiff has no right of action of trespass against the defendants, for the acts he complains of.

■ Until the law of 1852 the city might “ alter and amend ” their streets at pleasure. (See all the laws upon this subject, to wit: 1st. Montgomerie Charter, § 16, Davies’ Laws, p. 177; 2d. Rev. Laws of 1813, § 175, id., p. 526 ; 3d. Law of March 4,1852, id., p. 1083.) The right to “ alter and amend ” involves the right to change the grade of a street. (Waddell v. The Mayor, &c., 8 Barb. S. C. R., 95, and cases there cited.) The law of 1852 does not take from the city the right to make the change of grade, where a change is to be made. It only imposes restraints upon its exercise. Before this law, the exercise of the right was unrestrained. No one had any remedy or redress for loss he might sustain by reason of it. No damages could be assessed, and none could be allowed to him. It follows that the remedy given by the last named statute is a “new remedy,” and the assessors, by whom the damages are to be awarded, are, for the purposes of such award, a new tribunal. The consent of property owners to the change is made necessary by the language, “it shall not be lawful,” &c., without such consent. This annexes to the law of 1852 a right of action on the part of the People for its violation. (2 R. S., part 4, ch. 1, title 7, p. 696.) “ Where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, in such case, the party violating the statute is liable for the penalty only.” (Sedgwick on Stat. and Const. Law, p. 401.) Again, (p. 402,) “where, by a statute, a new right is given and a specific remedy provided, or a new power, and also the means of exercising it, are provided by statute, the power can be exercised, and the right vindicated, in no other way than that prescribed by the statute.” By the statute of 1852: 1st. A penalty was made to attend its violation. Its violation was a misdemeanor. 2d. No new right was given the individual. 3d. A specific remedy is provided.

II. The restraints imposed by the statute of 1852 were mere reservations of rights to the public, and not a bestowal upon individuals. These restraints were mere police regulations. It was left to the chances of each particular case, as to whose will their exercise should depend on. The consent was not a condition

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precedent to the invasion of private property, but to the exercise of a public duty.

III. It does not follow that a valid award, under the statute, could not be made, because an assessment for benefits would be void. The argument that this does follow is founded upon the supposition that the awards are to be paid out of the particular fund to be raised by the assessment, which is erroneous. The assessment is but a means of reimbursing the city the moneys expended in payment of the awards. The test is whether the person, to whom an award should be made, would have a lien upon the particular fund derived from the assessment for the payment of the award, in case of refusal of payment by the city, for any cause.

IV. In this case Ihe plaintiff is entitled to no private remedy. He has suffered no private wrong. 1st. (As already shown,) the right infringed was not a private right. 2d. The injury suffered was common to all plaintiff’s neighbors in Frankfort, Hague, Pearl, Vandewater, and other streets in his vicinity. (Lansing v. Smith, 8 Cow., 146 ; Smith v. Lockwood, 13 Barb., 209 .)

The judgment should be reversed.

A. J. Willard, for respondent.

I. The power which had been conferred upon the Mayor, Aldermen and Commonalty of the city of New York, by previous laws or charters, to regulate the public streets, was limited by the act of the Legislature, passed in 1852. (Sess. Laws, 1852, p. 46, §2.)

The second section of this act provides that “ it shall not be lawful for the Common .Council to alter or change in whole or in part the grade of any street or avenue in said city now established, south of Sixty-third street, or which may hereafter be established north of Sixty-second street, except upon the written consent of the owners of at least two-thirds of the land in lineal feet, fronting on each side of street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered.”

This limitation of the power of the Corporation required, as a preliminary to any action, that they should obtain the written consent of the owners of at least two-thirds of the lineal feet

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fronting on and adjacent to any street, of which it was proposed to change the grade.

Without such consent, there was no authority in the Corporation to cause the existing grade of any of the established streets of the city to be altered, and if, without obtaining such consent, they changed the grade, their act was one of trespass, for which an action would lie by a party injured.

The power of .the Corporation over the streets of the city is a mere political power. The public easement-in the streets is vested in the People of the State, and not in the citizens of New York, or the corporation of New York. As, in the counties generally, the care and custody of highways, is committed to commissioners or overseers, so the same duty is enjoined in cities upon the corporate authorities, and their respective common councils áre made commissioners of highways, and the corporation is rendered liable for all damages occasioned by the negligent discharge of their duties. (Storrs v. City of Utica, 17 N. Y. R.,104.)

As commissioners of highways, in either towns or cities,' all their powers and duties "are conferred and prescribed by statute, and it is competent for the Legislature to enlarge or restrict them, or to take them away altogether.

The evidence in this case establishes that the appellants, without having obtained the consent of the owners of the requisite number of lineal feet, passed an ordinance and altered the grade of an established street, fe the permanent injury of the respondent’s property. This, under the prohibition of the act of 1852, was an unauthorized act, and constituted it a trespass.

If the act here complained of had been done under lawful authority, and ail the requirements of the statute conferring the authority been strictly observed, then, except for the indemnity provided by the act of 1852, it. would probably have been regarded as damnum absque injuria. And, it is submitted, that it was to relax the harsh rule of the common law, as stated in Radcliff's Executors v. Mayor of Brooklyn, (4 Comst., 195,) that the Legislature enacted the remedial statute of 1852.

In the absence of all evidence to the .contrary, the respondent owning the premises abutting upon the street, is presumptively the owner of the fee of the street to the centre, subject to the

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public easement; and hence, if the act of subverting the soil for the purpose of lowering the grade of the street was without lawfhl authority, the respondent could have his action as well for the trespass to the freehold, as for the consequential injury to his adjacent property. For if the entry upon the street was without right, it rendered the trespasser liable for all' the consequences- of his illegal act.

The right to recover under such circumstances is founded in-principle and sustained by authority. (Howell v. City of Buffalo, 15 N. Y. R., 512; Conrad v. Trustees of Ithaca, 16 id., 158; Mott v. The Mayor, &c., of New York, MS. Opinion, Common Pleas.)

The constitutionality of the act of 1852, (March 4, Davies’ Laws, p. 1083,) has not been questioned, and is to be assumed until clearly disproved.. It is, then, a restriction upon a previous legal and absolute right to change the grade of streets, as the Common Council might be advised.

The 2d section of that act provides that “ it shall not be lawful for the Common Council to alter or change, in whole or in part, the grade of any street or avenue in the said city now established, south of Sixty-third street, or which may hereafter be established north of Sixty-second street, except upon the written consent of the owners of at least two-thirds of the land in lineal feet fronting on each side of the street or avenue opposite to and adjoining that part thereof, the grade of which is to be changed or altered.”

By the 3d section of this act, where the grade of any street or avenue shall be changed or altered, in whole or in part, “ it shall be the duty of the assessors appointed to estimate and assess the expense of conforming to such change of grade and regulating the street or avenue in accordance therewith, to estimate the loss and damage which each owner of land fronting on such street or avenue will sustain by reason of such change, to such lands or to any improvements thereon; and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands or tenements fronting on such street or avenue, and opposite thereto, and affected by such change of grade; and the amount of such award shall be included in the expense of such proceeding, and with such expense shall be assessed as provided in the 175th section of the act of April 9, 1813, entitled,

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‘ An act to reduce several laws relating particularly to the city of New York into one act.’ ”

This statute has thus provided a Board, not only for assessing adjoining owners for the benefit they may derive from the improvement, but also for ascertaining the damage which may be sustained by adjoining owners. It may well be that, if the plaintiff, or any one similarly situated, had gone before such assessors, proved his damage, and submitted his claim, he might be estopped from urging the present objection. But the Corporation has, in this instancej assumed the performance of the work; resolved that it shall be done at their own expense, and assessors were appointed only to assess upon the owners benefited their respective proportion of the expense. I presume this was done under the 270th section of the act of 1813. (2 R. L., 446.)

The Common Council could only perform the work in question upon obtaining the consent of two-thirds of the owners, as prescribed in the act of 1852. They have done it in an unlawful manner, ' and damage has been suffered by the plaintiff from this unauthorized act. The case appears to be a clear one. Howell v. The City of Buffalo, ( 15 N. Y., 512 ,) appears to govern it.

In The Philadelphia and Wilmington Railroad Company v. Quigley, (21 How. U. S. R., 202,) the Court say: “ The powers of the Corporation are placed in the hands of a governing body selected by the members, who manage its affairs and who appoint the agents for the accomplishment of the objects of its being. But these agents may infringe the rights of persons who are unconnected with the Corporation, or who are brought into reía- - tions of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is a recognition of a corporate responsibility for the acts of those representatives.” -

The result of the cases is, that, for. acts done by the agent of a corporation, either ex .contractu or ex delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible, under similar circumstances.

The action was one of libel. I may observe that the trespass and damage here complained of are the acts of immediate agents of .the Corporation, who acted under its direct authorization.

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It is objected that thus the title of a multitude of owners must be searched before an improvement of this nature can be made. So it must be upon opening streets; and the act of 1852 has provided for the difficulty, where the owners to be paid are not designated in the report of the assessors.

The judgment should be affirmed, with costs

Judgment affirmed.