Steitz v. City of Beacon , 295 N.Y. 51 ( 1945 )

The courts below dismissed this complaint on the ground that it fails to state facts sufficient to constitute a cause of action. According to the complaint, a fire broke out in plaintiff's building in the city of Beacon, New York, on the night of December 26, 1942. In the course of the fire the building burned down. It is alleged by plaintiff that the destruction of his property was due to the neglect of defendant City of Beacon in that, according to the complaint, the city failed to keep in repair a pressure and flow regulating valve in the city's water lines and negligently allowed that valve to be and remain in a state of disrepair. It is further alleged that the city was at fault in its operation of another or hand valve in the water line, also. By reason of such carelessness of the city, alleges plaintiff, there was no water, or at least not sufficient water, available for the effective fighting of the fire. Particularly to be noted is the allegation in the complaint that the city, under its charter (see L. 1920, ch. 171, § 24) was required by law to create and maintain a fire department. That same charter authorizes the city to construct and maintain a water system. Special Term, in ordering the complaint dismissed, relied on Hughes v. State of New York (252 App. Div. 263). In the Hughes case the court, among other things, held that, since the extinguishment of fires is a "governmental" function of a city, no liability can be predicated on such a corporation's failure to furnish adequate fire protection. There are innumerable cases throughout the United States, some of them in this State, so holding, but they all rest in whole or in part on the theory that, in furnishing protection against fire and in extinguishing fires, a city acts in its "governmental" and not in its "proprietary" capacity. That traditional theory of immunity from liability for faulty performance of "governmental" activities, including fire protection is, however, only an aspect of the larger rule of the common law that a sovereign could not be held to respond in damages (see Workman v. New York City,Mayor c., 179 U.S. 552, 556, 566; Dunstan v. City of NewYork, 91 App. Div. 355, 359). "All these cases but expound the theory of sovereign attribute" (Workman v. New York City,Mayor c., supra, at p 572). The State of New York, however, has, by section 8 CTC of the Court of Claims Act, waived that immunity from liability and action and has assumed such liability, and consented to have the same determined, "in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations". Pointing out that no city of this State "has any independent sovereignty" and that the immunity formerly enjoyed by cities "was nothing more than an extension of the exemption from liability which the State possessed", we have held that the City of New York would be liable for negligence in connection with the conduct of its Police Department, even without General Municipal Law, section 50-b (Bernardine v.City of New York, 294 N.Y. 361, 365). The common-law theory of nonliability of municipal corporations in connection with their police departments was precisely the same as with respect to their fire departments. We conclude that the cities of this State have, as a result of the State's waiver of its immunity, become liable at least for negligent maintenance of such facilities and appliances for fire protection as they possess. We limit ourselves herein to saying that an actionable wrong is stated in this complaint insofar as it alleges that the city, having installed certain hydrants, valves, etc., negligently allowed them to fall into disrepair and disuse. We need not now decide what, if any, liability there would be in a case where the alleged fault of the city was not the negligent upkeep of its fire-fighting plant, but a failure to provide adequate fire-fighting facilities or to use them efficiently (see Millset al. v. City of Brooklyn, 32 N.Y. 489, 495; Urquhart v.City of Ogdensburg, 91 N.Y. 67, 71). Our upholding this complaint would go only so far as to say that the statements therein that the city failed to keep its fire equipment in good order, with resulting damage to the property of the citizen, allege an actionable wrong. Such damage need not be by physical impingement, but may be such as results from a failure to keep protective devices working (Foley v. State of New York,294 N.Y. 275).

This complaint discloses another ground on which liability might be predicated. As above pointed out, an applicable State statute commands defendant City of Beacon to maintain a fire department. Even before the State of New York relinquished its sovereign immunity, the cities of this State were held liable for their defaults in connection with such State-mandated services. That obligation follows from the contract with the State, implied from the acceptance of the city's charter, that the city will discharge the duties imposed by the charter (see Storrs v. TheCity of Utica, 17 N.Y. 104, 109; Hover v. Barkhoof, 44 N.Y. 113,121; Maxmilian v. Mayor, 62 N.Y. 160, 164; Missano v.The Mayor, 160 N.Y. 123, 129; O'Donnell v. City ofSuracuse, 184 N.Y. 1, 10; Herman v. Board of Education,234 N.Y. 196, 201; Urquhart v. City of Ogdensburg, supra). That idea of an implied contract is well stated at 43 Corpus Juris, Municipal Corporations, § 1703, page 927, as follows: "In many jurisdictions the rule is laid down that a municipal corporation, when charged in its corporate character with the performance of a municipal function, the duty being absolute or imperative and not merely such as under a grant of authority is intrusted to the judgment and discretion of the municipal authorities, is civilly liable for injuries resulting from misfeasance or nonfeasance with respect to such duty; and this rule has been especially applied in cases relating to streets, and to sewers and drains." As the above quotation from Corpus Juris points out, most of the cases enforcing this rule involve streets and sewers and followConrad v. The Trustees of the Village of Utica, 16 N.Y. 158 (and Weet v. Village of Brockport which in effect is incorporated into this court's opinion in the Conrad case — see reporter's note at p. 161 of 16 N.Y.). While we find no reported cases containing like holdings as to a city's negligence in connection with maintaining its fire-extinguishing paraphernalia, we see no reason against such a holding. It follows that this complaint should not have been dismissed for insufficiency.

It is not presently important that the failure was of a valve or hydrant in a water line, rather than of the fire-fighting machinery itself. The charter's mandate to the city to have and operate a fire department necessarily includes the furnishing of water therefor.

Although liability for failure to supply fire protection was denied in both Fire Insurance Co. v. Village of Keeseville (148 N.Y. 46) and Moch Co. v. Rensselaer Water Co. (247 N.Y. 160), neither case is a compelling authority for affirmance here. Both those cases were of course, decided before the State gave up its sovereign immunity. Furthermore, the Keeseville and Moch opinions carefully pointed out that neither the Village of Keeseville nor the City of Rensselaer, was under any such legal duty as has been imposed on this defendant by its legislative charter to supply its inhabitants with protection against fire.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

LEWIS, CONWAY and DYE, JJ., concur with THACHER, J.; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., concurs; LEHMAN, Ch. J., deceased.

Judgment affirmed.