Ellis v. Village of Lowville

Mullin, P. J. The trustees have no power, under the charter, to appropriate the moneys raised for highway purposes to making or repairing sidewalks in said village. The moneys for sidewalks must be voted by the inhabitants; those for the highways are to be raised by a tax on the taxable inhabitants. The resolution that was passed by the inhabitants is of no validity. It specified no sum to be raised; and without such, specification it is declared, by the thirtieth section of the general law, to be void. Unless, therefore, the trustees are liable because they are [438] commissioners of highways, or the repair of the walk could be legitimately done out of the highway fund, the corporation was not liable and the judgment should be affirmed. The amendment of the charter of 1866 makes the trustees commissioners of highways; and for the neglect of such trustees to perform their duties the corporation is liable. (Cases cited infra.) It is the duty of commissioners of highways to keep them in repair, so that they do not become a public nuisance. But this liability attaches on commissioners in towns only when they are shown to have funds in their hands applicable to such purpose, and to which it is their duty to apply them. (Garlinghouse v. Jacobs, 29 N. Y., 297; Hover v. Commissioners of Florida, 44 id., 113.) But in incorporated cities and villages, whose common council or trustees are vested with the powers of commissioners of highways, the corporation is liable, for the omission to keep the streets in repair, to any person injured thereby, although they have no funds applicable to such use. This was directly held in Weet v. The Village of Brockport (16 N. Y., 159), in note to case of Conrad v. The Village of Ithaca, Hiscock v. Village of Plattsburgh, Hines v. City of lockport (5 Lansing, 16; S. C., 60 Barb., 378). To subject the corporation to liability for neglect, the duty must be imperative, and they must not be forbidden to raise, in some legitimate way, the money with which to do the work. If the work omitted in this case is to be considered as the repair, of a sidewalk, within the meaning of the sections of the general law relating to making and repairing sidewalks, they are not liable. They are not bound to make or repair a sidewalk until a tax is voted for the purpose. The provisions of the charter as to sidewalks seem to pro-, ceed upon the assumption that they are, in some way, separated from the street, and made, in part at least, of different material. [439] "Wlien a sidewalk, as thus defined, is to be made or repaired, a tax must be voted. Let us suppose that a flood comes and washes away the walk and the earth on which it rests, so that an excavation is made, dangerous to the life or limb of any person who should accidentally fall into it, may the trustees omit to fill up the excavation until a village meeting is called and tax voted % The space on which the sidewalk lies, if within the boundary of the street, is as much a part of the highway or street as the part over which teams pass; and no good reason can be assigned why the duty is imperative as to one part of the highway and not as to another part. (Graves v. Otis, 2 Hill, 466.) The trustees in this case, when they found the plank missing, might not be authorized to purchase plank out of the highway moneys in their hand's with whichu to repair the walk, but they could fill the hole with earth as they could a similar hole in the part traveled by teams, and thus protect foot passengers from injury. But it seems to me the trustees had the same authority to use the highway money to purchase plank to repair the walk that they would have to purchase it to repair sluices over streams crossing highways. The distinction I design to make is between repairing in order to make a walk safe, that would otherwise be dangerous, and repairing one whose condition involves' no danger to the public. It is the duty of the trustees to make the walk, when it is part of a public highway, safe; -but it is not their duty to make repairs on walks when there is no danger to the traveler if it is left unrepaired. It is essential, in order to subject the corporation to liability, that they should be shown to have funds in their hands applicable to the work. The charter shows they have power to raise moneys for highway purposes; and it is presumed they discharged their duty. This is all the plaintiff could prove. The defendant had the means of showing they [440] liad not funds, and the proof of the negative is, under such circumstances, on them. This was" held in the case of Hines v. City of Lockport (supra). The judgment should be reversed and a new trial ordered, costs to abide the event.