
    John Rexford, App’lt, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    Board of claims — Jurisdiction of—Negligence — Navigation of the canals—Laws 1870, chap. 331.
    Plaintiff, a canal boat captain, having obtained his clearance, started along the berme bank of the canal to regain his boat, and was compelled to climb over the abutment of a bridge by means of iron rungs fastened to the stones, by the state, for that purpose. The stone gave way and plaintiff was injured. Held, that this was not a claim arising from damages resulting from the navigation of the canals within the exception of chapter 331, Laws 1870, and that the board of claims had jurisdiction of the matter. Peckham, J., dissenting.
    
      Appeal from state board of claims.
    
      A. L. Johnson, for app’lt; D. O'Brien, for resp’t.
   Finch, J.

The plaintiff’s demand against the state was dismissed by the board of claims as beyond its jurisdiction, and the correctness of that decision depends upon the meaning and construction of section 1 of the act of 1870. The state can only be sued by its own consent, and for liabilities which it chooses to assume, People v. Dennison (84 N. Y., 281); and this has been expressly held where the cause of action alleged, rested upon some misfeasance or nonfeasance, Lewis v. State (96 N. Y., 71). We are referred to no statute which permits a claim to be filed for such an injury as the claimant has suffered, except the act of 1870 (chapter 321). The later act of 1876 (chapter 444), which constituted the board of audit, and gave it authority to hear all private claims and accounts,” did not in any manner change or enlarge the liability of the state; and whoever presents a claim against it must show some statute which involves the consent of the state to be answerable before its own tribunals for such claim, or those of a class to which it belongs. The general language of the act of 1870 is broad enough to cover the present case. It permits claims to be filed for damages sustained from the canals, from their use and management, or arising from the neglect of an officer in charge, or from any accident or other matter connected therewith. It ends, however, with a proviso that the provisions of the act shall not extend to claims arising from damages resulting from the navigation of the canals,” and the case before us has been adjudged to be one of that character.

The claimant reached Syracuse upon a canal-boat which he was navigating, at which place he stopped to discharge some portion of his freight. Having done so, he went to the collector’s office to obtain a clearance; his boat meantime going on in charge of others than himself. When the clearance was obtained, he started along upon the berme bank of the canal to rejoin his boat. His route brought him to the abutment of the Warren-street bridge, which stood close to the water, and could only be passed by one following the bank of the canal by climbing up one side, and descending the other. To enable this to be done the state had provided irons fastened to the stones of the abutment, and serving as rungs of a ladder. The claimant began his ascent, passing upward from one iron to another, and, reaching the upper iron, took hold of it with his hands; but the stone to which it was attached had been insecurely fastened, and became 'loose, and fell out of the wall under his grasp, throwing him to the ground, and injuring him quite severely. For the damages thus sustained he filed a claim against the state for its negligence, or that of its officers in charge. The bridge was a structure built and maintained by the state to carry a highway over the canal. The proof is sufficient to warrant an inference that the street existed for public passage when the canal was built, and that the duty of maintaining the bridge had been assumed by and rested upon the state. While the berme bank of the canal was in no sense a public-highway, yet at the point in question it served for the passage of those whose business properly brought them to that locality. The presence of the irons was itself an invitation to persons rightfully passing to use them, and indicated a purpose on the part of the state to permit the crossing of the bridge by such means and in such manner. The claimant was nota trespasser. He was rightfully upon the berme bank of the canal, and, in virtue of his business and occupation, at liberty to pass along it and cross the abutment in' his path. The defective stone had been loose for at least a year, and long enough for an inference that the defect had come to the knowledge of the state, or its officers in charge of the canals. The act of 1870, therefore, covered the injury sustained, unless the board of claims were right in deciding that it “resulted from the navigation of the canals.”

The liability assumed by the state was general; the exception special. The state could exclude what it pleased from the scope of its broad consent, and could choose its own language for its own protection. Its exception, therefore, should take out from the broad general consent only what is strictly within its terms. The damages excluded must result from the navigation of the canals; that is, from the passage of boats along and upon their waters. Damages might result from the careless management of locks, or their imperfect maintenance or construction, to the teams drawing the boats, or those in charge of them;' from collisions due to overcrowding or insufficient room; from sudden breaks chargeable upon unskillful or careless construction. Numerous cases of this general character were naturally to be apprehended, and were intended to be excluded, and the language used in the proviso was appropriate and effective for that purpose. But it can have no just application to accidents or injuries befalling one not at the . time engaged in navigation of the canals, and which did not result from that navigation. The claimant, for the time, had abandoned his boat. Somebody else was navigating it. The former intended to resume its navigation, and was walking along the bank with that view, but until he reached and rejoined his boat he would not be actually engaged in its navigation. It is quite true that, in a certain broad and general sense, he might be said to have been engaged in the business or occupation of navigating the canals when the injury occurred, but he was none the less away from his boat, traveling upon the land for no purpose essential to the movement of his boat upon the water, and his injury did not result from, and was not occasioned by, the navigation of that boat. The language used contemplates a case in which the act of navigating is one of the concurring causes of the injury, so that the latter can be deemed a result.

For these reasons we are of the opinion that the board of claims construed the proviso too broadly, and that its terms do not exclude the claimant’s injury. The award should be reversed, and the case remitted for a new hearing.

All concur, except Peckham, J., dissenting.  