p. 495Henry R. Beekman, counsel to the corporation, attorney, and D. J. Dean, of counsel, for appellants, on the questions considered in the opinion, argued:
I. The facts proven are insufficient to constitute a cause of action against the mayor, aldermen and commonalty of the city of New York. 1. The railway was constructed under a legislative grant, which provides as follows: “ § 2. The said railway shall be constructed on the most approved plan for the construction of city railways, and the cars shall be run as often as the convenience of the public may require ” (then follow provisions in relation to fares and transfer tickets to other railways) ; “ and said railway shall be subj ect to such reasonable rules and regulations as the common council of the city of New York, from time to time, may prescribe.” Ch. 393, Laws 1875, 456. It is the contention of the plaintiff that the city is liable in this action because it failed to compel the company to locate, its track and turn-table, at such a distance from the sidewalk as would have prevented the accident by which the plaintiff was injured. The appellants’ answer to the contention is as follows: I. That the power to enact reasonable rules and regidations conferred by the statute upon the common council of the city of New York is of a quasi judicial character, involving the exercise of discretion in determining the character and extent of such regulations, and the city is not liable in damages if it failed to adopt any regulations, or if the regulations adopted by it proved to be sufficient to prevent accident. The application of this doctrine is illustrated in the following cases: Grifin v. Mayor, 9 N. Y. 456 ; Cain v. City of Syracuse, 95 Ib. 83; Mills v. Brooklyn, 32 Ib. 489; Wilson v. Mayor, 1 Den. 595 ; Urquhart v. Ogdensburg, 91 N. Y. 71 . Municipal corporations are in no case liable for errors of judgment in relation to matters committed to discretion of their departments. The common council is the legislative department of the city of New York, and an action founded upon its failure to enact sufficient rules and reg
p. 496ulations to prevent the accident by which the plaintiff was injured, is in every respect the analogue of an action against the state, because the legislature has failed to enact a law which might have prevented the injury from which the claimant against the state has suffered. The authorities are abundant which sustain the position that such an action cannot be maintained against a municipal corporation. Wilson v. Mayor, 1 Den. 595 ; Governor v. Meredith, 4 Durnford & East 796; McCarthy v. Syracuse, 46 N. Y. 196 ; Hines v. Lockport, 50 Ib. 238; Lynch v. Mayor, 76 Ib. 60; Seifert v. Brooklyn, 101 Ib. 141.Edward .8. Clinch, attorney, and of counsel for respondent, on the questions considered in the opinion, argued:
I. The character'of the city of New York (Laws 1873, 335), provides: “ § 17. The common council shall have power to make, continue, modify and repeal such ordinances, regulations and resolutions as may be necessary to carry into effect any and all the powers now vested in or by this act conferred upon the corporation, and shall have the power to enforce obedience to such ordinances and observance thereof by ordaining penalties for each and every violation thereof, in such sums as it may deem expedient, not exceeding one hundred dollars, and shall have power to make such ordinances, not inconsistent with law and the constitution of this state, and with such penalties in the matters and for the purposes following in addition to other powers elsewhere specially granted. 2. To regulate the use of the streets, highways, roads and public places by foot passengers, animals, vehicles, cars and locomotives. 2*. To regulate the use of sidewalks.....4. To prevent encroachments upon and obstructions to the streets, highways, roads and public places, not including parks, and to authorize and require the commissioners of public works to remove the same, but they shall have no power to
p. 497authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. 9. To regulate the use of the streets and the sidewalks for signs, sign-posts, awnings, awning-posts, horse-troughs, urinals, telegraph posts and other purposes.”..... “ § 72. There shall be eight bureaus in the department of public works. 8. A bureau for the removal of incumbrances on the streets or sidewalks, the chief officer of which shall be called the ‘ superintendent of incumbrances,’ to whom all complaints shall be made, and by whom such incumbrances shall be removed.” The Consolidation Act, Laws .1882, ch. 410, provides: “ § 252. The board, of police shall at all times cause the ordinances of the city of New York, not in conflict with the law, to be properly enforced.” The acceptance of its charter by the city imposed upon it the duty to keep its sidewalks in a reasonably safe condition for public use, and to prevent the erection or maintenance of anything which is a constant menace to the lives and bodies of its citizens, and this duty is also created by the power of the common council to make ordinances to prevent encroachments upon the streets and sidewalks, and by the imperative obligation of requiring the commissioner of public works to remove any such encroachments (Charter, § 17, subd. 4); and for a failure to perform this duty the city is liable. Kunz v. City of Troy, 105 N. Y. 344 ; Pompfrey v. Village of Saratoga, Ib. 459; Urquhart v. City of Ogdensburg, 97 Ib. 238.II. Of the existence of the turn-table and of the dangerous use to which it wras put the city had ample notice. It was erected in 1874, and had been used continuously since, and policemen had been notified of its dangerous character. The charter of the company provided that “ the said railway shall be constructed on the most approved plan for the construction of city railways,” and that “ said railway shall be subject to such reasonable
p. 498rules and regulations as the common council of the city of New York from time to time may prescribe.” Laws 1874, p. 697. And upon the acceptance by the railroad of the license, the terms and conditions upon which the license was granted became a contract between the company and the city, and with notice of these terms and conditions the city was chargeable, and it became its duty to prescribe rules and regulations for the management of the road. But notwithstanding this precaution upon the part of the legislature and notice to the city of the dangerous use to which the turn-table was put, imputed to it by its long use, and the actual notice to its policemen, the city entirely neglected its duty in the premises, and thereby subjected itself to liability to any one who suffered in consequence of its neglect. Rehberg v. Mayor, etc., 91 N. Y. 137 ; Mayor v. Troy & Lansingburg R. R. Co., 49 Ib. 657 ; Ploedterll v. Mayor, etc., 55 Ib. 666 ; Clemence v. Auburn, 66 Ib. 339; Dillon on Municipal Corp., 753, 980; Mayor v. Furze, 3 Hill 612 ; Bullock v. Mayor, etc., 99 N. Y. 654 ; Bailey v. Mayor, etc., 3 Hill 531 ; Brower v. Mayor, etc., 3 Barb. 254 , 257; Urquhart v. City of Ogdensburg, 97 N. Y. 244 ; Cohen v. Mayor, 41 Hun 404 .111. The city endeavored to escape liability for the damage sustained by the plaintiff by the plea that the location of the turn-table by the city authorities was a judicial proceeding and that for the consequences of its location the city was not liable. But this involves an erroneous view. The mere determination whether the turn-table should be built was a matter of discretion with which the courts could not interfere, but after its construction the city became liable, if with its consent, or authority, or by its failure to interfere, the turn-table was used in conjunction with the cars, so as to imperil the lives and bodies of pedestrians using the sidewalk. The plaintiff was not injured by the turn-table but by a car, on the turn-table sweeping over the sidewalk and knocking her down. The duty of the city to protect persons
p. 499against the improper use of the turn-table is ministerial and not judicial. Saulsbury v. City of Ithaca, 94 N. Y. 30 ; Hines v. City of Lockport, 50 Ib. 239; Hyatt v. Village of Rondout, 44 Barb. 395 ; 41 N. Y. 619 ; Vogel v. Mayor, etc., 92 Ib. 10.IV. The case at bar cannot be distinguished in principle from the later cases in the court of appeals where the liability of municipal authorities has been determined. In Saulsbury v. Village of Ithaca ( 94 N. Y. 27 ), it appeared that a walk had been built in the village, not by the village authorities, but with their knowledge. The determination by the authorities that the walk might be built was a matter of discretion not to be regulated by the courts. The walk became out of order, and the plaintiff was injured in consequence. The court held that the village was responsible for the condition of the walk, and that the duty to keep it in good order was not judicial but ministerial. To the same effect, Goodfellow v. Mayor, 100 N Y. 15 ; Nelson v. Village of Canisteo, 100 Ib. 89; Dubois v. City of Kingston, 102 Ib. 219; Rehberg v. Mayor, 91 Ib. 137.The action was for damages for personal injuries caused, as the complaint alleged, by the negligence of the appellant.
The appellant’s co-defendant was a street railway, using horses, and called the South Ferry Railway Company. It had a terminus at or near the corner of Church street .and Vesey street. In Church street at the terminus, a turn-table was inserted. In the ordinary course of things a car would go upon this turn-table. Passengers would step from th'e platform of the car to the sidewalk. The car would then be turned. In turning, the platform of the car would move over the sidewalk, over-reaching a distance of two or three feet.
The plaintiff had been a passenger on a car of the company. She had alighted on the sidewalk. The car had been so negligently turned that the platform had struck
p. 500her before she could move a safe distance. She had been knocked down and received severe hurts.
There is no doubt that the company was liable. The question on this appeal relates to the liability of the city. The act incorporating the company (Laws 1874, p. 697), provided, “that said railway shall be subject to such reasonable rules and regulations as the common council of the city of New York, from time to time, may prescribe.”
The city charter (Laws 1873, chap. 335), provided that the common council shall have power to regulate the use of streets by cars, etc., to regulate the use of sidewalks, to prevent encroachments upon and obstructions to streets, and to authorize and require the commissioners of public works to remove the same, but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk “except the temporary occupation thereof during the erection, etc., of a building, etc.”
The learned counsel for the respondent claims, that using the sidewalk as a place over a part of which the platform of the cars would move, was an obstruction or an encroachment of the sidewalk, as it was continuous, although intermittent, to the constructive knowledge of the city. It is not necessary for the purposes of this decision to deny the validity of the position.
The further argument is that under the statutes that have been cited, it was the duty of the city to have made some regulation or to have required that the company should not operate its road so as to involve the moving of the platforms of cars over the sidewalk.
Whatever power or duty the city had or was under, neither was of a kind that could impair the statutory right of the company. The complaint and the charter show that the company had a right to the terminus at or near Church and Vesey streets. The city at the most, could only regulate the enjoyment of. their right. The complaint did not suggest the case, nor did any claim of
p. 501the plaintiff upon the trial, that the city had the power to prevent the use of a turn-table at all, or what would have been the same in effect, of cars to be drawn by one horse or that did not need to be turned. The case does not present the point. The proposition is that the city should not have allowed the incumbrance of the sidewalk.
As to this, it must be said that the city was forced to yield to the right of the company to have the turn-table at some point there, either in the roadway so far that in turning, the platform would not be at all over the sidewalk, or at a point nearer the sidewalk. In either case, there would be an obstruction of the highway. The sidewalk has no right to a freedom from encroachment superior to the streekway’s right. The city was called upon to exercise a discretion of a judicial nature as to the place where the obstruction should be. This exercise of discretion cannot be reviewed by a court.
I further think these considerations are not relevant to the case here, as it appears that the company had a right to a turn-table either where it was, or at some other place in the streekway. The accident did not happen because the place where the plaintiff alighted was a sidewalk. It would have happened if the turn-table had been so far from the curb, that the plaintiff would have stepped upon the streekway.
For these reasons, the city was not liable in this action.
Judgment reversed and new trial ordered with costs to abide event.
Freedman, J., concurred.