
    Florence A. Smith, Pl’ff., v. The City of Rochester, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Municipal corporations—Rochester—Negligence—Notice.
    The charter of the city of Rochester provides that the city shall not be liable for injuries arising from defects in the sidewalks unless actual notice has been previously given to the city officers having charge of the highways, and makes the executive board highway commissioners, with power to appoint a superintendent of streets. Held, that a sidew dk inspector was not a city officer having charge of the highways within the meaning of the act, so that his knowledge of the defect can be imputed to the members of the executive board.
    Motion by the plaintiff, Florence A. Smith, for a new trial upon exceptions taken at the Monroe circuit in January, 1891, and ordered to be heard at the term in the first instance.
    
      Walter S. Hubbell, for pl’ff; C. D. Kiehel, for def’t.
   Macomber, J.

At the trial of this action the plaintiff was non-suited upon the ground that no notice had been given to the authorities of the city of Rochester of the dangerous or unsafe condition of the street upon which the injuries complained of were received by the plaintiff.

The action is one of negligence, for bodily injuries sustained by the plaintiff on the 2d day of June, 1888, between the hours of nine and ten in the evening, while walking on a public sidewalk on the west side of North avenue. A stone walk, which had lain in the place where the plaintiff was injured, had been removed by the owner of the abutting premises and excavations made underneath, and the same covered by planks which ran lengthwise of the walk and which were not securely fastened, so that they parted, leaving openings between them. A certain amount of brick and rubbish was piled at one side of the walk, and it was contended that the plaintiff was obliged to use these planks in order to pass along. While she was pursuing her course, to all intents in a careful manner, her foot and leg went between the planks, whereby she received quite serious personal injuries.

The motion for a nonsuit was based upon the following provisions of the city charter, being § 218 of chap. 14 of the Laws of 1880: “ The city of Rochester shall not be liable for any injury caused by such sidewalks being out of repair or unlawfully obstructed, or dangerous from snow or ice, unless actual notice of the unsafe or dangerous condition thereof has been given to the city officers having charge of the highways a reasonable time before the happening of any such injury.” That this provision of the charter is constitutional, since the recent decision of the court of appeals in the case of McNally v. City of Cohoes, 127 N. Y., 350; 39 St. Rep., 578, following, in principle, the case of Todd v. City of Troy, 61 N. Y., 506, admits of no doubt.

The learned counsel for the plaintiff, however, at the circuit, made an offer of evidence of such a character as that, as he now claims, should have permitted him to go to the jury upon the question whether or not actual knowledge or notice of the condition of this walk had not been brought home to the executive board of the city of Rochester. Upon the trial he offered to prove, by a witness who was called, that he was one of the sidewalk inspectors of the city at the time of the accident in question, and that in the performance of his duty as such inspector he passed by this place and saw its condition on the day of the accident and on each day for weeks prior thereto; that he was appointed such inspector by the executive board and that his duty was, among other things, to examine sidewalks and ascertain for the executive board whether the same were out of repair or in a dangerous condition or were obstructed in any way. The learned justice at the trial asked if the counsel meant that the inspector had informed the executive board of the condition of the sidewalk. Counsel said that he was not prepared to show that and did not expect to do so.

The question, therefore, urged upon us is, whether or not the knowledge of this inspector can be ascribed to the members of the executive board, and if so, whether or not the positive provisions of the charter, above quoted, can be thus avoided. This depends, primarily, upon the question whether ornotthis sidewalk inspector was a city officer having charge of highways. That question can be answered, in our judgment, but one way, and that decidedly in the negative. By subdivision 7 of § 40 of the charter, power is given to the common council “ to regulate and prevent the use and. cumbering of streets, avenues, walks, public squares, lanes, alleys, bridges, aqueducts, wharves, basins or slips in any manner whatever.” By the 149th section, “ The executive board shall have * * * the superintendence and control of all work or improvements ordered by the common council, and shall have the control of the construction, improvement, repair and cleaning of the streets, alleys, sewers and bridges, except bridges owned by the state of New York, and shall have control of the expenditure of the funds therefor. * * * The members of said board shall give their entire time to the duties of the office, and shall be the commissioners of highways of said city. The executive board may appoint and at pleasure remove a superintendent of streets, fix his compensation and prescribe his duties.”

Under these provisions of the charter, it is clear that this inspector was not a superintendent of streets appointed by the executive board, but that he was, as the description of his duties necessarily implies, a subordinate, a means adopted by the members of the executive board to bring home to them knowledge or notice of the actual condition of the streets. It would, doubtless, .be difficult for the members of the executive board personally to ascertain without such aids the actual condition of the sidewalks throughout the city, but the knowledge of the inspector cannot be imputed to the members of the executive board under any rule of law with which we are acquainted. The members of the executive board are themselves but mere agents of the municipality, and the statute has seen fit absolutely'to say that the municipal corporation shall not be liable for injuries of this character unless actual notice has been brought home to the executive board. This, of course, does not mean that a formal notice shall be served upon each or any member of the board; it is sufficient that they have knowledge of the existence of the defects a reasonable time before the injuries complained of were received, to enable an action to be maintained. But the knowledge of any other person whom they may employ is not imputable to the board until it is in some way brought to their attention.

The learned counsel for the plaintiff makes sundry citations from the work of Wade on Notice. But, with due deference, we are of the opinion that they do not apply to cases of this character. They relate solely to matters pertaining to the principle of the knowledge possessed by the agent, and do not relate to the matter here in controversy. Indeed, we find nowhere in that book reference to any question arising under a provision in a municipal charter of the. character here appearing. We are of the opinion, therefore, that the nonsuit was correctly granted, and it follows that the exceptions taken thereto should be disallowed and judgment ordered thereon for the defendant.

Plaintiff’s motion for a new trial on exception denied, with costs, and judgment ordered for the defendant on the nonsuit

Dwight, P. J., and Lewis, J., concur.  