McSherry v. Trustees of Canandaigua

Gray, J. The plaintiff sued the defendants for the alleged neglect to keep a sidewalk in repair ; in consequence whereof he sustained personal injuries, by a fall through a defective and unsafe grating. The defendants have appealed from the affirmance by the General Term of a judgment entered by the plaintiff, upon a verdict by a jury in his favor. Of the points urged by their counsel I deem it unnecessary to refer to but two, and that reference may be brief, in view of the satisfactory opinion of Judge Dwight at General Term. The appellants claim that the plaintiff should have been nonsuited; because by the village charter the trustees were under no obligation to construct or repair sidewalks. In his very elaborate brief the counsel for the appellants bases his argument, in that respect, upon a construction of the act, passed in 1815 (Chap. 254), under which the village of Canandaigua was incorporated; of the subsequent act of 1847 (Chap. 420), constituting the village a separate road district, and of those provisions or sections of the General Village Incorporation Act of 1847 (Chap. 426), which were adopted by the village electors in 1848. In my judgment we are not called upon, and it seems unnecessary, to follow him in that argument, or "to pass upon his interpretation of these laws. Whatever may have been the limitations upon the administrative powers and duties of the village trustees, with respect to the making and repairing of streets or sidewalks, the subsequent enact *616 ment of chapter 352 of the Laws of 1854 must be considered and taken to have so far enlarged these powers and duties, as to have done away with the restrictions in the way of their exercise, which may previously have existed with respect to authority, either to 'undertake such work, or to bind the village. The title of the act of 1854 is “ An act in relation to the village of Canandaigua and enlarging the powers and duties of the trustees of .said village.” Section 1 of the act provides that “ the trustees of the village of Canandaigua shall be commissioners of highways in and for said village, and shall have all the powers of commissioners of highways, and as such they shall have power to regulate, repair * * * the streets * * * sidewalks * * * in said village, and to prevent the incumbering of the same in any manner and to protect the same from encroachment and' injury.” If this legislation meant anything, it could but mean a new grant .of powers by the state; whereunder an ampler scope was given, in the respects mentioned, to the jurisdiction of the municipal authorities of the village. If, under the act of 1847, the village trustees were dependent for their authority to repair the streets and sidewalks upon the action of the village electors, it might well be said that no obligation rested upon them to keep them in repair, in the absence of such action as would confer authority and supply the moneys. But, upon the passage of the act of 1854, what was formerly a qualified, or limited, jurisdiction in the trustees with respect to the streets and sidewalks, became absolute, as that of commissioners of highways. By virtue of the enlarged jurisdiction the village trustees were invested with general powers and with corresponding duties, and the responsibility for their proper performance devolved upon the municipal corporation as such. (Conrad v. Trustees of the Village of Ithaca, 16 N. Y. 158; Saulsbury v. Village of Ithaca, 94 N. Y. 27.) For the negligence of the trustees the corporation became liable at the suit of an injured party. The principle underlying the liability so devolving rests in an implied obligation to be responsible for the faithful performance of the duties *617 imposed, in consideration of the investiture of the trustees by the legislature with the grant of the wider power. This obligation, obviously, inures to the benefit of every party interested in its fulfillment. The action, therefore, was maintainable, if there was notice of the existence of the defect. There was evidence that one Homer Chase was employed by the trustees to superintend and examine the streets and sidewalks, and the admission was formally made of record that Chase was “ the street commissioner of the village of Canandaigua at the time of the accident to the plaintiff, and had been since January 1, 1888.” There was evidence, further, to show that notice of the dangerous condition of the grating had been given to Chase some time prior to the accident. Whether he was de faetv or de jure street commissioner becomes immaterial, under the facts of the case, and if the jury found that there was notice to him, it was sufficient notice to the corporation of the existence of the defect complained of. The other questions raised by the appellant’s exceptions in the case have been considered, but none are of sufficient importance to call for discussion here. The judgment shotdd.be affirmed, with costs. All concur. Judgment affirmed.