
    Mina Seymour, Resp't, v. The Village of Salamanca, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    
      1. Villages—Negligence—Sidewalk.
    The objection that village trustees omitted to declare by formal resolution, on the presentation of a petition for laying out a ctreet, their decision that the improvement should be made and enter the same on their minutes, cannot be taken by the village as a defense to an action for an injury sustained through slipping into a hole in a sidewalk, provided the village proceeded to open the street, and the injury resulted from its negligent omission to keep it in a safe condition.
    2. Same.
    In 1882, when the order laying out the proposed street was made, the land embraced therein was open, unclosed ground, except a private way. In 1883, quite a number of houses were erected adjacent to the street on both sides. In September the trustees instructed the clerk to_ notify these people to build a sidewalk. November 7tli, the clerk was instructed to notify F. to “ extend his sidewalk,” etc., and in May, 1884, the road commissioner was instructed to take down fences and all obstructions on Water street and open up the same,” etc. Held, that enough was shown to justify the jury in imposing a liability upon the village resulting from the unsafe condition of the sidewalk in front of F.’s land.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.
    
      William H. Henderson, for app’lt;
    
      W. S. Thrasher and J. B. Fisher, for resp’t.
    
      
       Affirming 35 St. Rep., 999.
    
   Per Curiam.

Villages incorporated under chapter 291, of the Laws of 1870, possess the power to open and improve streets within the corporate limits and maintain sidewalks therein, and may require the owners or occupants of lands on the streets to construct sidewalks in front of their premises, and in case of default of such owners or occupants to comply with such requirement the trustees are authorized to make the improvement and charge the expense upon the lands. Title 7, § 1; title 3, § 4.

The exercise of the power to lay out and open streets, given by the act, is quasi judicial and discretionary, and no private action lies for the omission by a village to exercise the power, although it may be made to appear that the public interests require its exercise. But where the discretion has been exercised and the street has been opened for public travel, the ministerial duty to keep the street and sidewalk in repair attaches, and for a negligent omission by the village authorities to perform such duty, whereby a person, lawfully passing along the streqt and himself using due care, is injured, an action lies in his favor against the village for damage. Nelson v. Village of Canisteo, 100 N. Y., 89.

The present action was brought for an injury sustained by the plaintiff from slipping into a hole in a plank sidewalk on the north side of Water street in the village of Salamanca, on the evening of November 24, 1885. The sidewalk was originally constructed by one Farnam in front of his premises in 1881 or 1882, before any proceedings had been taken to open Water street. A private way had been opened between the lands of Farnam and •one Hevenor, extending easterly from William street to the west line of Farnam’s land. He had built five houses on the tract fronting on the private way, and the sidewalk was constructed for the accommodation of his tenants. In June, 1882, proceedings were instituted by petition in conformity with § 1, title 7, of the act of 1870, for the laying out of a street, particularly described in the petition, extending westerly from William street 1,269-^ feet, and thence northerly 578j- feet to Eiver street.

■The proposed street included the private way laid out by Farnam, and it is inferable from the evidence that the sidewalk constructed by him was along the north bounds of the proposed street.

The proceedings resulted in the making of an order by the board of trustees of the village on the 26th day of June, 1882, laying out the street in accordance with the prayer of the petition. The land owners w'hose lands were included in the street, with two exceptions, released any claim for damages, and a jury was duly summoned and an award of damages made July 5, 1882, to the two land owners who had not released their claims, and on or prior to April 21, 1883, they accepted the sums awarded them respectively.

There are but two questions of law presented by the record which require special consideration. It is claimed by the learned counsel for the defendant that the street was not legally laid out, for the reason that on the presentation of the petition the trustees -did not decide, by resolution entered in the minutes, that the improvement petitioned for should be made. The act provides, Tit. 7, § 1: “On the presentation of such petition the trustees shall and must meet, and examine the same; and if they decide the improvement shall be made, they shall so decide by resolution to be entered in the minutes of ike board; and they shall thereupon put up, in five public places in said village, a correct description of the lands to be taken to make such improvement, and a notice that the trustees at a place and on a day, and at an hour therein specified, not less than five days from the date and posting thereof, will meet and hear any objections."

The record does not show, nor is there any evidence that the trustees, prior to posting and serving the notices of the meeting to 'hear objections, decided by formal resolution to make the improvement. There was no other irregularity in the proceedings. The hearing of objections was had pursuant to the notice, and after the hearing tíre trustees, by resolution, declared their intention to make the improvement, which was entered in the minutes, and made an order laying out the street in due form, and proceeded to have assessed the damages to the persons who did not release their claims, and they were paid.

We deem it unnecessary to inquire whether the omission of the trustees to declare by formal resolution, on the presentation of the petition, their decision that the improvement should be made and to have the same entered in their minutes, was a jurisdictional defect. Assuming that it would have furnished a defense to a person whose lands were sought to be taken, the objection cannot be taken by the village as a defense to this action, provided it proceeded to open the street, and the injury resulted from its negligent omission to keep it in a safe condition. The village, by the proceedings and the voluntary release of the land owners who consented to release their claims for damages, and the payment to the others of the award made, acquired the right to open the street as against the land owners. No objection was, in fact, interposed so far as appears by any one. The irregularity in the proceedings was due to the omission of the trustees. to precisely follow the direction of the statute, and the village ought not to be permitted to escape liability, if in other respects it was established, by alleging this informality. Sewell v. City of Cohoes, 75 N. Y., 45; Saulsbury v. Village of Ithaca, 94 id., 27; Jewhurst v. City of Syracuse, 108 id., 303; 13 St. Rep., 623.

The other principal defense is that, in fact, the street had not been opened in November, 1885, when the alleged injury happened. It appears that in 1882, when the order laying out the proposed street was made, the land embraced in the proposed street was part of open, unclosed ground, except the part forming the private way of Farnam near William street. There were some stumps standing upon the ground, and otherwise the land was in its natural state. But in 1883, after the laying out of the street, quite a number of houses were erected adjacent to the street west of the Farnam lot,. on both the north and south sides. On September 24, 1883, the trustees instructed the clerk of the village to notify the persons occupying these houses to build a sidewalk in front of their premises on “ Water street.”

November 7, 1883, the clerk was instructed to notify Farnam ■“ to extend his sidewalk to fill up a gap on premises owned by him on Water street.” May 19, 1884, the road commissioner was instructed “ to take down fences and all obstructions on Water street and open up the same.” At this time, May 19, 1884, the street was used west from William street so far as the houses extended and sidewalks had been constructed in front of all or most of the houses, and people were accustomed to use the sidewalk on the north side of Water street to reach William street and the centre of the village, passing over the sidewalk in front of the Farnam houses. West of the residences on Water street the street was not used, and some part of it was covered with water.

Some work was done by the village on the street west of the residences in 1884, but that part of Water street was not rendered fit for travel until 1886 or after. It does not appear that the clerk served the notices to build sidewalks required by the resolution of September or November, 1883, but they seem to have been built. The accident to the plaintiff occurred while walking on the sidewalk in front of Farnam’s houses.

The court charged the jury that if the village had, at the time of the accident, “adopted Water street and assumed control over it, directed in reference to it, it became a street and it was required to keep the street and sidewalk in reasonable repair.”

It is insisted, on the part of the defendant, that the street had not been so far opened at the time of the accident as to impose any duty on the village to maintain any supervision over the sidewalks, and that while it was iu an unfinished condition and was in the process of being adapted for travel, it was not liable for any injury resulting to individuals from defects in the sidewalks.

We are of opinion that enough was shown to justify the jury-in imposing a liability upon the village for injury resulting from the unsafe condition of the sidewalk in front of Farnam’s land. The public had a right to assume that the street, from William street, so far as the houses extended, was in use by the permission of the village as a public street. The orders made by the trustees assume that sidewalks were necessary. It treated Farnam’s walk as a public passageway, by requiring its extension. The open and continued use of the street, as such, by the inhabitants of the village, it must be assumed, was known by the corporation.

In the view we have taken, it is unnecessary to examine the exceptions to the charge relating to the street. The charge, as made,, properly presented the question to be decided, and we think no error was committed by the trial judge in his rulings on this branch of the case. Nor are there any valid exceptions to the rulings upon the requests upon the point of contributory negligence of the plaintiff. The court stated the correct rule to the jury, and this was all to which the defendant was entitled. Niven v. City of Rochester, 76 N. Y., 619. The negligence of the defendant, assuming that it was bound to exercise care in keeping the sidewalk in a safe condition, was, upon the evidence, a question for the jury.

We find no error in the record, and the judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.  