Van Valkenburgh v. Borough of Bergenfield

The opinion of the court was delivered by Garrison, J. This is a demurrer by the borough of Bergenfield to a declaration in which the borough is impleaded as a defendant with three individuals. The only charges in the declaration that in any way affect the borough are contained in two counts, the other counts being aimed solely at the individual defendants. In the first of the two counts referred to the borough is charged with negligence in permitting certain holes to be made in a public street of the borough and with permitting said holes to remain with knowledge of their existence; the other count charges that the holes were unlawfully made by the borough. The plaintiff sues as a user of tíre highway whose automobile was injured by the defective condition of the street. The demurrer must, be sustained on the ground that the section of the R.oad act authorizing suits for damages for injuries so received applies to townships only. 3 Gen. Stat., p. 2844, § 192; 4 Comp. Stat., p. 4451, § 66, art. 19. It does not apply to boroughs and is not extended to boroughs bj1, the eigbdy-fourth section of the Road act. Carter v. Rahway, 28 Vroom 196. The case of South v. West Windsor Township, 53 Vroom 262, applies only where a public statute gives the right of action, which, is not the case here where the demurrer is sustained, not because the declaration did not set out the statute, ,but because there was no statute to be set out. The plaintiff contends that the demurrer should not be sustained because while going to the whole declaration it challenges two counts only. This point would be well taken if the [327] counts not challenged affected the demurrant. They do not, and when a defendant in fact challenges all of a declaration that affects him, the rule invoked has no proper application. Judgment on demurrer may be entered for the demurrant, with costs.