In the case of Hutson and wife v. The Mayor, c., ofNew-York (supra, p. 163), we decided, at the last term, that the corporation of the city of New-York were liable for injuries sustained by a passenger, in consequence of a street being out of repair. In that case an excavation had *Page 458 been made in the Fourth Avenue by the Harlem Railroad Company, by constructing the track of their road upon it, pursuant to an act of the legislature, and with the assent of the common council.
In doing this, a deep excavation had been made in the traveled part of the street, leaving only a narrow space for passage, which had become very dangerous in consequence of the wearing away of the earth by the rains. It was suffered to remain in this state by the city authorities; and the plaintiff who was driving past it in a carriage was overturned and injured.
We held the city corporation liable, for the reason that we conceived it to be its duty, under the 175th section of the act of 1813 (2 R.L., 407), to have amended and put in repair the portion of the street in question. The provision expressly authorizes the corporation to order and direct the altering and amending of the streets, and to collect the expense by an equitable assessment. The same principle had been held, in effect, by the former supreme court in The Mayor, c., of New-York v. Furze (3 Hill, 612).
The present case is not within the statute or the principle of these decisions. Chambers-street is not shown to have been out of repair. It is one of the old paved streets of the city, and, for aught that appeared, the pavement was unbroken and in perfect order. The difficulty was, that certain persons, in violation of the city ordinances, had placed encroachments upon this street, rendering its use inconvenient, and to a certain extent dangerous.
It did not appear that either the common council or any of its officers had notice of the existence of the nuisance, nor was it shown to what extent or under what restrictions individuals engaged in building may make use of portions of the street for a temporary deposit of the materials and rubbish. That subject is provided for in the city ordinances.
It is improbable that any ordinance would have justified these piles of rubbish to have remained in the street for the length of time mentioned, if indeed it was not the duty of the parties concerned *Page 459 to have removed them individually.
By § 195 of the act just referred to it is made penal for any person to put or leave any unnecessary obstructions in any of the roads of the city; and although this provision does not embrace the streets, strictly so called, there is no doubt but that the authority which the corporation possesses, to make all needful by-laws and ordinances for the good government of the city, confers upon it ample power to adopt suitable regulations upon this subject, nor but that the power has been exercised by the enacting of a series of rules deemed adequate to the exigencies of the case.
The functions of a common council, as applied to this subject, are those of a local legislature, within certain limits, and are not of a character to render the city responsible for the manner in which the authority is exercised, or in which the ordinances are executed, any more than the state would be liable for the want of adequate administrative laws, or for any imperfections in the manner of carrying them out.
The wrong complained of in this case arose either from the want of suitable municipal regulations, or from some negligence in the city officers in ascertaining the existence of the obstruction, or seasonably applying the proper remedy.
A doctrine which should hold the city pecuniarily liable in such a case would oblige its treasury to make good to every citizen any loss which he might sustain for the want of adequate laws upon every subject of municipal jurisdiction, and on account of every failure in the perfect and infallible execution of those laws. There is no authority for such a doctrine, and we are satisfied that it does not exist. A similar question came before the superior court in Levy v. The Mayor, c. (1 Sandf.
S.C.R, 465), where it was attempted to make the city liable for an injury committed by swine running at large in one of the streets, on the assumption that the corporation are bound to provide for such a perfect execution of its ordinance upon that subject that no injury should ever occur. I entirely concur in the opinion of the court in that case, which was *Page 460 delivered by the late Justice SANDFORD, and was adverse to the plaintiff.
"It is the duty of the government," said the learned judge, "to protect and preserve the rights of the citizens of this state, both in person and property, and it should provide and enforce wholesome laws for that object. But injuries to both person and property will occur, which no legislation can prevent, and which no system of laws can adequately redress.
The government does not guaranty its citizens against all the casualties incident to humanity and to civil society; and we believe it has never been called upon to make good by way of damages its inability to protect against such misfortunes." The foregoing considerations are sufficient to dispose of this case, without considering the further question whether there was not sufficient evidence of negligence on the part of the plaintiff in attempting, what it was impossible for him safely to do, to pass a place not wide enough for two vehicles, when one was already passing through it.
The judgment of the superior court ought to be affirmed.
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