
    The City of Rochester, App’lt, v. John H. Campbell et al., Ex’rs., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Abatement and revivor—Action by city to recover over from lot
    OWNER DAMAGES IT HAS BEEN COMPELLED TO PAY, DOES NOT ABATE BY DEFENDANT’S DEATH.
    Where the charter of a city (in this case, § 11, chap. 343, Laws of 1881), makes it the duty of the owner of a lot to keep his sidewalk in good re-pah, and clear of snow, ice or other obstruction, and gives the superintendent of streets power to repair in case the owner doc s not, and to collect the expense thereof, a statutory duty of vigilance in this respect is imposed upon the owner. And where one, injured by a defect in such sidewalk, elects to sue the city in the first instance, of which action the owner has due notice, and the injured person recovers of the city, the city has its action over against the owner, and its action does not abate by his death.
    ¡2. Same.
    Such an action cannot be regarded as one ex delicto, arising out of wrongful acts of the owner. His liability to the city rests upon the statute, which imposes upon his property an obligation in the nature of a tax, for the purpose of keeping the public streets in repair.
    Appeal from a judgment entered upon the decision of the Mon-Toe special term, sustaining the defendant’s demurrer to the plaintiffs complaint. The plaintiff is an incorporated city charged with the duties, by its charter, of maintaining and keeping in a safe and secure condition the public streets within its "territorial limits. The complaint alleges that the decedent in his life time was the owner of and in the possession of certain premises, situated on the northerly side of Strong street, in the front of which and adjoining such lands there was laid a sidewalk for the use of the public; that it became and was the duty of the said James Campbell, under and by virtue of the acts relating to the city of Rochester, and forming its charter, to keep said sidewalk in good repair, and also to remove and clear away all snow and ice and other obstructions from such sidewalk.
    That the said James Campbell omitted to perform the duties So imposed upon him by the said statute to keep and maintain the said, sidewalk in front of his premises in good repair and free from obstruction, whereby and on the 5th day of November, 1886, “ one Margaret A. Ferguson, while walking carefully along said street and sidewalk, and without fault or negligence on her part, stepped into a hole of said sidewalk, and was thereby thrown down with great violence, and thereby she was greatly and permanently hurt and injured, * * * and became and was, for a long time thereafter, sick, lame and disabled, and thereby suffered damages in the sum of one thousand dollars.” The plaintiff then alleged the death of said James Campbell, and that Margaret Ferguson commenced an action against the city to recover the damages which she sustained, and a verdict was rendered against the city for $1,100, and judgment entered thereon with costs, which has been paid by the city; that the said defendants had actual notice of the commencement of said action, and that they appeared and assisted in the defense thereof. The defendants interposed a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    
      Henry J. Sullivan, for app’lt; Eugene Van Voorhis, for resp’ts.
   Barker, P. J.

Upon the facts stated in the complaint the plaintiff was liable to Ferguson for the damages she sustained in consequence of the sidewalk being out of repair. Such liability is founded upon the well established principle, that a municipal corporation having the exclusive care and control of the streets is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances which might prove dangerous; and if this is neglected, and any one is injured, it is liable for the damages sustained. The principle upon which such corporations are thus made liable is, that whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by agreement, either express or implied, to do certain things, such corporation or individual is liable in case of neglect to perform the agreement, not only to a public prosecution by indictment, but to a private action at the suit of every person injured by such neglect. The grant by the government, to the municipality, of a portion of its sovereign power, is to be deemed a sufficient consideration for the implied contract, on the part of the corporation, to perform the duties which the charter imposes and the contract with the sovereign power enures to the benefit of every individual interested in its performance. Conrad v. Village of Ithaca, 16 N. Y., 158.

This is a leading case among the decisions of this state in establishing the liability of municipal corporations to individuals who have suffered damages in consequence of the public streets being out of repair, and has been recognized as authority in all the subsequent decisions on the same subject. Requa v. City of Rochester, 45 N. Y., 129; Storrs v. City of Utica, 17 id., 104; Robinson v. Chamberlain, 34 id., 389.

The corporation has, however, a remedy over against the party who caused the street to become in an unsafe condition by placing obstructions therein, or by omitting to discharge any duty imposed by law requiring him to keep the sidewalks or any portion of the street in repair. City of Rochester v. Montgomery, 72 N. Y., 65 ; Robins v. City of Chicago, 4 Wall., 667 ; City of Lowell v. Short, 4 Cush., 275; Village of Port Jervis v. First Nat. B'k, 96 N. Y., 550.

This rule of law was not disputed by the learned counsel for the respondent. His position is this, and is the basis of his whole argument, that tne cause of action stated in the complaint is based on the alleged unlawful acts, wrongs and torts committed by the decedent in his lifetime, and did not survive his death, within the rule of the common law that all actions ex delicto die with the person by whom the wrong was done, and in support of .his argument cites and relies upon the recent case of Hegerich v. Neddie, 99 N. Y., 258. I think that the questions discussed and determined in that case have no application whatever to the one under consideration. It is not alleged in the complaint that the deceased did or caused to be done any affirmative act which in any way contributed to the injuries received by Ferguson for which the plaintiff became liable to her in damages. The deceased was not charged with doing any act which would make him liable by the rules of the common law, either to the injured party or to indemnify the plaintiff against his liability to such person.

By the rules of the common law no duty is imposed upon the owner or occupant of land adjacent to a highway or street to improve, repair or keep the same in order. This action cannot be maintained upon the theory that the decedent is a wrongdoer in neglecting to keep the sidewalk in good order. He did not lay down the sidewalk, and had nothing to do with its construction ; at least it is not so charged in the complaint. If the plaintiff had a cause of action against the decedent in his life time, it must have existed in the provisions of some statute which required him, in absolute and unconditional terms, to perform some duty in which the public was interested and which he failed to do, and in consequence thereof the sidewalk became in an unsafe and dangerous condition.

The plaintiff bases its claim for indemnity upon the terms of its charter which charged the defendant with the unqualified duty and obligation to keep the sidewalk in front of his premises in .good repair, and that he was primarily liable to the injured party because he failed to perform the statutory obligation. The charter in force when the accident happened provides that, “ it shall in all cases be the duty of the owner of every lot or piece of land in said city to keep the sidewalks adjacent his lots or piece of land -in good repair, and also to remove and clean away all snow and ice, or other obstruction from such sidewalk, and to keep half . the street or alley adjoining the same free from obstruction or oh* stacie. * * * The superintendent of streets shall have the power to repair any sidewalk where the owner of the property shall neglect to repair the same for five days after written notice so to do has been served on him personally, or at his residence, if his residence be known and he live in the city, or otherwise, after being left on the premises. * * * The street superintendent shall have the power to collect the expense of any such work or repair from the owner of the property, and he shall send such owner, if his address be known, a bill of the amount thereof.” Laws of 1881, chap. 343, § 11, amending § 218 of the charter.

By other provisions the mode and manner of collecting the expense of repairs is provided for. The duty of vigilance is imposed upon the land owner to see that the sidewalks adjacent to his property are kept in good repair, and this obligation is imperative and depends upon no condition whatever. It cannot be doubted but what the legislature had the power to impose a duty of this nature upon the owner of lands situated within the limits of a municipal corporation.

The power conferred upon the corporation is supposed to be for the benefit of property owners as well as for the inhabitants residing within the city limits. The obligation imposed by the statute is in the nature of a tax upon the property of the owner for the purpose of keeping the public streets in repair, which the legislature had the undoubted right to impose.

This law was enacted for the protection of all the public using the sidewalks in the city of Rochester, and any person injured by reason of the neglect of the land owner to keep the sidewalk in front of his premises in good repair is entitled to an action for the damages which he has suffered, if he himself is free from contributory negligence. The principle upon which such liability is based as stated in the cases already cited, is simply this, that where a person is charged with the performance of a duty he is liable for his neglect to perform the same to any one sustaining special damage in consequence thereof. Robinson v. Chamberlain, and Conrad v. Village of Ithaca, supra.

Upon the facts stated in the complaint Ferguson had her election to proceed against the city or the owner of the projjerty. She elected to proceed against the-city, and recovered a judgment for her damages, which the city paid, and it has a remedy over against the personal representatives of Campbell, who was primarily liable. Fulton v. Tucker, 3 Hun, 529; City of Boston v. Worthington, 10 Gray, 499; City of Rochester v. Montgomery and Robins v. City of Chicago, supra.

The statutory obligation is in the nature of a contract between ' the land owner and the public, and an action for a breach of the performance survives the death of the obligor.

We de not have before us for consideration on this appeal any question relative to the measure of damages or the rules of evidence applicable to the case.

Judgment should be reversed and the demurrer overruled, with costs of this appeal and of the demurrer, and on payment of the same within twenty days after the service of a copy of this order; defendants may withdraw their demurrer and interpose an answer to the plaintiff's complaint, and on a failure so to do judgment absolute is ordered for the plaintiff.

Dwight and Macomber, JJ., concur.  