Willis v. Parker , 159 N.Y.S. 676 ( 1916 )

Kruse, P. J.:

The plaintiff seeks to hold the defendant liable to-her for personal injuries she sustained by falling upon a defective sidewalk located in front of his premises in the city of Auburn. Her claim is founded upon the provision contained in section 99 of the charter of the city of Auburn (Laws of 1906, chap. 185), which requires the owner or occupant of lands fronting or abutting on the street to make, maintain and repair the sidewalk adjoining his lands, and provides that: “ Such owner and occupant and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk * * *, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks.” But the section does not state to whom, the owner or occupant shall be hable. It further provides for serving notice upon the owner or occupant to repair said walk or remove and remedy the dangerous or defective condition in a sidewalk adjoining his property, and makes the owner or occupant personally hable to the city in case of his neglect to comply with the notice for the amount of the expenses of repairing or remedying such condition, besides making the same a hen upon the premises.

Section 30 of the charter authorizes the city to make ordinances. Ordinances may be made to prevent incumbering the streets and sidewalks (subd. 20); to compel persons to make, maintain and repair sidewalks (subd. 21); to compel the removal of dirt, rubbish, snow or ice from the street between the sidewalk and the center of the street (subd. 22); to regulate digging in the street (subd. 48); to control the placing of wires, poles, conduits and subways in the streets (subd. 50); to regulate the use of the sidewalks and streets by foot passengers (subd. 51). Section 36 provides that the commissioner of public works, shah have the direction and control of the construction, alteration, repair, care, cleaning, paving, flagging, lighting and improving of streets, ways and sidewalks and requires the sidewalk inspector to inspect the sidewalks and see that the provisions of the charter and of all the ordinances relating to sidewalks are strictly enforced, and report to the commissioner of pubhc works the location of all sidewalks the condition of which require new walks to be laid and ah walks needing repairs. Sections 100, 101 and 101a, as added in 1910 (Laws of 1910, chap. 319), give the common council authority to require the owners and occupants to make, maintain and repair sidewalks and other parts of the street, and in case of neglect the common council may cause the same to be done and have the expense thereof assessed against the property and collected like other taxes, making it a hen upon the lands. (See, also, Laws of 1911, chap. 560, amdg. said § 101.)

It is contended on behalf of the plaintiff that the Legislature intended to make the owner or occupant of lands adjoining a street primarily liable to the injured person for injuries or damages sustained from a defective sidewalk in front of the premises. The Special Term held that the owner or occupant was not liable directly to the injured person, but only to the city, by way of indemnity. I think that holding is correct, but whether that is so or not, I am of the opinion that in order to make the owner liable at all, it. is necessary to give the notice and take the proceedings prescribed by the charter for compelling an owner or occupant to repair the sidewalk, and it is not until he makes default that any liability arises against him from the defective condition of the sidewalk. It is not alleged in the complaint, nor is it claimed, that the owner has violated or failed to observe any of the ordinances, or to comply with any notice or requirement of the city respecting the sidewalk in question.

I think it is apparent from the various provisions in the city charter that the State delegated to the city the care and control of its streets, giving it full authority and adequate means for keeping them reasonably safe and passable, and the exer-' cise of this power carries with it the corresponding obligation upon the part of its officers to perform that duty. (Dillon Mun. Corp. [5th ed.] § 1704; 2 S. & R. Neg. [6th ed.] § 289.) This rule was early adopted in this State. (Conrad v. Trustees of Village of Ithaca, 16 N. Y. 158; Hickok v. Trustees of Village of Plattsburgh, Id. 161.)

This duty is primarily upon the city, not upon the adjoining landowners. The city determines where the sidewalk shall be located, how it shall be made, when it shall be repaired and the manner of doing it, and its authority is supreme. The owner or occupant must conform to the direction of the city, which is the superior authority. If the city and the owner or occupant had equal authority a conflict might easily arise.

It is true that the statement is made in the opinion in the case of Cushen v. City of Auburn (22 N. Y. Wkly. Dig. 387) that a party suffering an injury from a defective sidewalk may pursue either the city or the individual owning or occupying the lands abutting upon the street; and the same statement is reiterated in the opinion in the case of City of Rochester v. Campbell (55 Hun, 138); but that question was not involved in either of those cases, and the Court of Appeals in reversing the Campbell case held directly to the contrary, distinguishing the cases cited in the opinion at General Term as authority for that proposition by pointing out that they were all cases where the dangerous condition of the street was created by the defendants, who were held liable for the consequences of their unlawful acts, under their common-law obligations as creators of a nuisance, and not by reason of any duty enjoined upon them by statute or otherwise. (123 N. Y. 416.)

I am unable to see how the owner can be held hable here, in view of the reasoning of the Court of Appeals in the Campbell Case (supra), and the doctrine of that case, I think, is in harmony with text writers and the decisions of other courts. (S. & R. Neg. [6th ed.] §§ 301, 343, 384, 701, and cases there cited.)

The Supreme Court of Minnesota has even gone so far as to hold that a statute which makes an adjoining holder liable for all damages to whomsoever resulting from his default in not keeping a street sidewalk next to his premises in good repair is unconstitutional so far as it assumes to make the owner liable to others than the city. (Noonan v. City of Stillwater, 33 Minn. 198.)

We do not go to that extent. We hold that under the statute here under consideration no cause of action is stated against the owner.

I think the interlocutory judgment should be affirmed, with costs, with the usual leave to plead over.

All concurred, except Foote and Merrell, JJ., who dissented in an opinion by Foote, J.