
    Emma K. White, Plaintiff, v. The City of Buffalo, Defendant.
    (Supreme Court, Brie Special Term,
    October, 1908.)
    Statutes—Interpretation—General rules—Mandatory or directory effect of statute — Permissive words construed as mandatory.
    In an action against a municipality whose charter requires the commen council to abate all nuisances, a complaint which sets up the continued periodical overflow of a watercourse declared by statute to be a public nuisance and which the municipality has been, by the same statute, authorized to abate, states a cause of action and is not obnoxious to a demurrer.
    Demubbeb to plaintiff’s complaint.
    Carlton H. White, for plaintiff.
    John W. Ryan, for defendant.
   Pound, J.

Plaintiff alleges that she owns lands described in the complaint, lying along and in the vicinity of Buffalo river iand within the city of Buffalo; that said Buffalo river is a navigable stream and a public highway, and that the city owns the fee of the bed of said river.

Plaintiff further alleges that the periodical overflow of said Buffalo river within said city and the flooding of the lands bordering on and adjacent to the same constitute a public nuisance-; that it is the duty of said city to abate said nuisance; that it has full power to abate the same; that said nuisance can be abated at reasonable cost and expense; that the city has assented to the placing of obstructions in the bed of the said river which increase the damage suffered by plaintiff, arising from said nuisance; that the city refuses to abate said nuisance and has decided that it will not abate it.

Wherefore, plaintiff demands judgment for $50,000, for damages resulting to her property.

Defendant demurs on the ground that said complaint does not state facts sufficient to constitute a cause of action, and relies upon the recent case of O’Donnell v. City of Syracuse, 184 N. Y. 1, to sustain its contention.

That was an action to recover damages oceasioned by defondant’s negligence. It was held that no duty is imposed by common law upon a municipality to abate the natural and ordinary flooding of lands on the banks of a navigable stream, and that plaintiff could not recover against the city for damages resulting to her property upon allegations that the occurrence was chargeable to the neglect of the defendant to exercise its charter powers with respect to the proper care and maintenance of the channel of the stream. Gray, L, writing the opinion, clearly distinguishes between discretionary powers of a municipality and those duties imposed upon it which are absolute in their nature. He says: “If the duty be judicial in its nature, as calling for the exercise of judgment, no liability rests upon the municipality for nonperformance; whereas if it be of a ministerial nature, neglect to perform it will render the municipality responsible to one injured thereby.” No absolute duty to prevent floods from injuring plaintiff’s lands was alleged or proved, and it was held that no liability was east upon the city for failure to exercise discretionary powers.

Plaintiff herein alleges a positive, absolute and imperative duty to abate nuisances imposed by law upon defendant by its charter, and that, by chapter 527 of the Laws of 1906, the periodical overflow of said river and the flooding of said lands is declared to be a public nuisance; that the city is given full power to abate the same, and that it is practicable to do so, and that the city refuses to perform its duty in this regard.

Unquestionably, the act of 1906 gives defendant full power in the premises, at least within the exercise of its judgment. Said act also declares said condition to be a public nuisance. The city charter (§ 395) provides that The common council shall * * * abate all nuisances.”

While it does not follow that the corporate duty of defendant to abate said floods is in fact immediate and absolute, nor do I so hold, I am of the opinion that plaintiff states a cause of action within the rule of the O’Donnell case, supra.

Demurrer overruled, with leave to defendant to answer.

Demurrer overruled.  