Albrecht v. Queens County ( 1895 )

CULLEN, J.

This is an appeal from an order sustaining a demurrer to the plaintiff’s complaint. The action is to recover for personal injuries sustained by the plaintiff in the falling of a bridge across Newtown creek, between the counties of Queens and Kings. The complaint alleged that it was the duty of the boards of supervisors of the two counties to maintain the bridge, and that the injury happened from the negligence of such boards in failing to maintain the bridge reasonably safe and secure for public travel. The question presented is whether the county is liable for the negligence of the board of supervisors in failing to discharge this duty. The opinion of the learned trial judge on sustaining the demurrer, in which we concur, leaves but little to be added by us. It is practically conceded by the counsel for the appellant that, prior to the enactment of the county law (Laws 1892, c. 686), no liability rested on the county for the malfeasance of the supervisors of the county officers. The same rule applied to towns. Towns in this state were not liable for failure to keep the highways in repair until the statute of 1885, and that statute created liability only in such cases as the commissioners of highways would have been personally liable in case of an action against them individually,—a very different liability from that imposed on cities and villages. Lane v. Town of Hancock, 142 N. Y. 510, 37 N. E. 473. The theory on which cities and villages were first held liable for defects in highways is stated in Conrad v. Trustees of Ithaca, 16 N. Y. 158, and Weet v. Village of Brockport, Id. 161, note. It is not merely that they are corporations, but that they obtain, upon the request oí their citizens, valuable franchises, and that, in consideration therefor, they undertake to perform with fidelity their charter obligation. This may be a fiction, as the legislature cannot incorporate a city without the consent of the inhabitants; but, nevertheless, the principle is too well settled in the law to be ignored. This principle is not applicable to counties which, while the statute may make them municipal corporations, are something more than such. They are political divisions of the state, so recognized in the constitution, and beyond the power of the legislature to abrogate. The state, doubtless, can impose upon counties liability for neglect of county officers to perform local duties. But we think no such intent should be inferred from the mere fact that, in a general revision of law relating to counties, they are declared to be municipal corporations.

There is a further objection to the maintenance of this action,— there has been no audit of the plaintiff’s claim. From the earliest period in the history of the state to the present, it has been necessary to present claims against the county to the board of supervisors for audit. With some unimportant exceptions, dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be maintained against the county for claims or county charges. The remedy was mandamus to the board of supervisors. If the claim was fixed by law, so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive, unless reversed on review, and could not be attacked collaterally. Osterhoudt v. Rigney, 98 N. Y. 222; Supervisors v. Briggs, 2 Denio, 26; People v. Supervisors of Delaware Co., 45 N. Y. 196; People v. Barnes, 114 N. Y. 317, 20 N. E. 609, and 21 N. E. 739. By subdivision 2, § 12, of the county act, the same power is still vested in the board of supervisors to annually audit all accounts against the county. If the plaintiff has a claim against the county, it must be submitted to the board of supervisors. The order appealed from should be affirmed, with costs and disbursements. All concur.