
    The City of Rochester, Resp’t, v. John H. Campbell et al., Ex’rs, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    Municipal corporation — Sidewalks — Owner of adjoining premises NOT LIABLE FOR INJURY THROUGH FALLING UPON. ,
    Where the charter of a city requires the owners of lots to keep the sidewalk in good repair and free from snow and ice, with power in the superintendent of streets to repair, if neglected by the owner for five days after written notice has been served on him, the abutting owners do not incur any liability to individuals or municipalities for damages arising from streets rendered defective through want of repairs, and the municipality, having been compelled to pay such damages, cannot recover them from the owner of the premises adjoining the place where the injury occurred.
    2. Same—Liability of lot owners.
    Lot owners are liable to the municipality upon a neglect to repair the s'rcets, after notic°, for the expense which the corporation has incurred in making such repairs, and that is the extent of their liability under the statute.
    Appeal from judgment of the supreme court, general term, fifth department, reversing judgment sustaining demurrer to complaint.
    
      Eugene Van Voorhis, for app’lts ; Henry J. Sullivan, for resp’t.
    
      
      Reversing 28 N. Y. State Rep., 194.
    
   Ruger, Ch. J.—

The questions involved in this appeal are raised by a demurrer to the complaint, alleging that it does not contain facts sufficient to constitute a cause of action.

The action, as stated in the complaint, is based upon a liability alleged to have been incurred by the defendants’ testator under a •clause in the charter of the city of Rochester, which 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 adjoining his lot or piece of land in good repair, and also to remove and clear away all snow and ice or other obstruction from such sidewalk.” It was further provided that “ the superintendent of streets .shall have the power to repair any sidewalk when 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; ” and “ the street superintendent ■shall also have the power to collect the expense of any such vyork or repair from the owner of the property.”

The complaint alleged in substance that the defendants’ testator was the owner of a lot of land on Strong street in the city of Rochester and that in front of and adjoining said premises there was a sidewalk for the use of pedestrians using said street; that it became and was the duty of said testator, under and by virtue of the acts relating to the city of Rochester and forming its charter, to keep said sidewalk in good repair; that the said testator omitted this duty, whereby one Margaret A. Ferguson, while walking carefully along said street and sidewalk and without fault or negligence on her part, stepped into a hole in said sidewalk, and was thereby thrown down with great violence and permanently hurt and injured. u

It was also alleged that said Margaret had brought an action against the city of Eochester for the damages occasioned to her by said injury, and recovered therein, and that the city of Eochester had paid the amount of the judgment so recovered against it. It was also alleged that the defendants’ testator died before such action was commenced, and left a last will and testament-whereby the defendants were appointed his executors; that such executors were notified by the city of Eochester of the pendency of the action, and requested to come in and defend'the same, and that they were represented by counsel on the trial.

It will be observed that the complaint does not charge the defendants’ testator with negligence, or the breach of any contract duty; but his liability is predicated wholly upon the statutory obligation to repair, and the assumption that an omission to perform it imposes a liability in favor of all persons who may be injured by reason of such omission. The principles governing actions of this character have been the subject of frequent consideration in the courts of this and other states, as well as the Federal tribunals; and certain propositions may safely be assumed, in the further consideration of the case, as being too well settled to require argument or citation to support them. Among these are the following:

First. That municipal corporations in this state are charged with the care, custody and control of the streets and highways within their limits, and the duty, primarily, rests -upon them to keep such streets and highways in repair, so that they may be safely travelled upon by all having occasion to use them, and this duty is based upon the contract implied through the acceptance of a charter by such corporation from the state, devolving upon them the performance of such duties. Conrad v. Ithaca, 16 N. Y., 158 ; Saulsbury v. Ithaca, 94 id., 27.

Second. That such corporations are liable for damages arising from a neglect to perform this duty, in an action ex delicto, to persons lawfully using such streets and sidewalks, notwithstanding a duty to repair is also imposed upon the property owners in front of whose premises the injury occurred. Russell v. Canastota, 98 N. Y., 496 ; State v. Gorham, 37 Mc., 457; Gridley v. Bloomington, 88 Ill., 554; Robbins v. Chicago, 4 Wall., 657; Saulsbury v. Ithaca, 94 N. Y., 27.

Third. If a municipal corporation has been compelled to pay a judgment for damages recovered by a traveler for injuries sustained from a defect or obstruction in one of its highways, which defect or obstruction was created by the willful act or negligence of a third person, it may maintain an action against such third person for reimbursement, and the rule is the same when it has paid an undoubted liability without suit. Thompson, on Negligence, 789; Rochester v. Montgomery, 72 N. Y., 65; Village of Fulton v. Tucker, 3 Hun, 529.

Fourth. So, also, if the municipality has provided by contract with third persons for keeping its street in repair, and has been, through a neglect by such party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has thus been compelled to pay.

Fifth. The measure of damages in such cases is the loss sustained by the injured party and paid by the municipality, with such incidental expenses as may have been incurred in defending the action. Thompson on Hcriligence, 791; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 476.

Sixth. That no obligation to repair streets or sidewalks rests upon the lot owners at common law, but the duty to do so, if any, arises out of the statutory obligations imposed by the state or municipality upon them. Village of Fulton v. Tucker, 3 Hun, 529 ; Dillon on Municipal Corporations, § 1012.

Seventh. When a corporation is sued for damages arising out of defects and obstructions' in its streets and highways, created and continued by third persons, against whom the corporation has a cause of action for reimbursement, it may impose the burden of defending such actions upon such persons by notice, and in case they do not defend successfully, or neglect to make any defense, they are hound by the result of such suit, and cannot in any subsequent litigation between themselves and the corporation successfully dispute the material facts on which the adjudication rests. Rochester v. Montgomery, 72 N. Y., 65; Port Jervis v. Bank of Port Jervis, 96 id., 550.

Assuming the correctness of these propositions, the question which first presents itself is whether abutting owners incur any liability to individuals or municipalities for damages arising from streets rendered defective through want of repairs, under a charter like that in question.

The theory upon which actions have heretofore generally-been sustained in favor of municipal corporations against wrongdoers, for damages which they have been compelled to pay individuals injured through defects or obstructions in streets and highways, is that such corporations have succeeded, in some way, to the remedies of the injured party against the wrongdoer. Recoveries have been allowed in such cases only where the wrongdoer is responsible generally to all who are injured by his act, and when corporations have been compelled to pay damages for a wrongful act perpetrated, by another in public highways they become entitled to maintain an action against such person for indemnity from the liability which the wrongful act has brought upon them. In other words, the municipality, by payment, becomes practically subrogated to the cause of action against the lot owner which the injured party originally had, and it cap, recover against the lot -owner only by proving the injury, the negligence of the defendant, the extent of the damage, and the fact of payment by it. Rochester v. Montgomery, 72 N. Y., 65 ; Village of Port Jervis v. Port Jervis Nat'l Bank, 96 id., 550; Chicago v. Robbins, 2 Black, 418; Robbins v. Chicago, 4 Wall., 657; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 486. In these cases the primary liability rested upon those who created the dangerous condition through which injury resulted, and the municipality having been forced to pay such damages to one injured, it became subrogated to the remedies of the party whose damages had been satisfied. It was held in the case of Lowell v. Boston & Lowell R. R. Corporation, 23 Pick., 34, that “if the defendants had been prosecuted instead of the town, they must have been held liable for damages, and from this liability they have been relieved by the plaintiffs. It cannot, therefore, be controverted that the plaintiffs’ claim is founded in manifest equity. The defendants are bound in justice to indemnify them, so far as they have been relieved from a legal liability, and the policy of the law does not, in this instance, interfere with the claim of justice.” It is therefore essential, in this case, for the plaintiff to establish the original liabilty of the defendants’ testator for the injuries inflicted to the party injured, and if it fails to do this it must necessarily fail in the action. This is attempted to be done through the provisions of the charter.

That statute, however, does not, in terms, assume to make the-lot owners liable, and we do not think there is anything in its. spirit or meaning which creates such a liability. It is argued that, the liability is created by force of the rule that “ where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same- statute for the thing enacted for his advantage or for the recompense of a wrong done to him contrary' to the said law.” This rule undoubtedly embodies a sound proposition of law, and has been frequently approved and enforced in our courts, Willy v. Mulledy, 78 N. Y., 310, but it is not broad enough to cover the present cause of action. There is nothing in this statute showing that the duty of repairs was imposed upon the lot owners for the benefit of the public generally or any particular class of individuals. On the contrary, it is quite obvious that neither the public or individuals needed its benefits. They were already sufficiently secured in the right to have passable and safe highways, through the obligations of the charter requiring them to be furnished by the municipality, and abundant indemnity was provided for any damages that might be sustained from defective streets through the common law liability of the corporation therefor. The statute therefore had some other object and purpose, and it could have been only the propriety of furnishing to the municipality, by a proper distribution of burdens, the means of discharging its duty to keep the streets in repair, and that alone.

We think the lots owners are liable to the municipality upon a neglect to repair the streets, after notice, for the expense which the corporation has incurred in making such repairs; but this, we think, is the extent of their liability under the statute. It is a familiar rule in the construction of statutes that where a new right is created, or a new duty imposed by statute, if a remedy be given by the same statute for its violation or non-performance, the. remedy given is exclusive, and we think this statute is clearly within the meaning and spirit of this rule.

The statute clearly points out the liability which is incurred by the lot owners for a neglect to make repairs and gives the street superintendent an action to recover the damages suffered by the municipality from such cause. This, evidently, affords a full indemnity to the city for any neglect of the lot owners and ample means to discharge its duty to make repairs. It seems entirely unreasonable to suppose that the act was intended to impose the same duty upon two independent bodies. The obligation of the municipality to make such repairs is unconditional and unquestioned. It is not only charged with the duty of keeping the streets in repair and regulating the uses and purposes to which they may be devoted, but it has the power to permit temporary obstructions and erections to be made in them, and to make excavations, authorize disruptions and grant permanent appropriations of rights under the streets to individuals and corporations desiring to occupy them for public purposes.

It cannot be supposed that the legislature intended to impose an absolute duty to repair upon an individual who could not exercise it except under the control of another. That the primary duty rested upon the municipality, notwithstanding a duty has also been imposed upon property owners, has been decided in this court, Russell v. Canastota, supra, and it is inconsistent with this duty and the control which the municipality has of the streets to suppose that it was intended to impose a primary duty also upon the property owners. The two obligations are inconsistent with each other and can lead only to confusion and delay in the performance of a public service. The existence of an absolute power of control in one party and an imperative obligation to repair in another is impossible. The obligation to repair is necessarily subservient to the other and must be performed or neglected at the will and pleasure of the party having the right of control. There is no divided duty here. The obligation to keep the streets and highways in repair rested on the town. They could always perform this duty through the agency of others, and for the purpose of enabling them to do so they could, in specific cases, impose its performance on the lot owners or compel them to pay the expense the town was subjected to in case it performed the duty; but the paramount obligation always rested upon the corporation.

We have thus seen that the immunity of the lot owner from liability for damages for defects in streets is founded in reason and justice; but we shall also find it is supported, not only by authority, but by the uniform current of all authorities, not only in this, but in our sister states. The cases referred to in the court below to support the doctrine of the right of the municipality to recover in such cases are: Rochester v. Montgomery, 72 N. Y., 65; Village of Port Jervis v. First National Bank, 96 id., 550; Robbins v. City of Chicago, 4 Wall., 657; City of Lowell v. Short, 4 Cush., 275. These were all cases where the dangerous conditions of the street were created by the defendants, and they were held liable for the consequences of their unlawful acts under their common law obligations as the creators of a nuisance, and not by reason of any duty enjoined upon them by statute or otherwise. The distinction between such cases and those relating to the consequences following a neglect of some duty imposed by statute are manifest and radical.

The decided weight of authority seems to be against the existence of such a liability. It was substantially held in the case of The Village of Fulton v. Tucker, 3 Hun, 529, in an opinion written by that learned judge, the late Justice Talcott, that the lot owner was not liable to the municipality, even where the duty of repairing sidewalks had been imposed by ordinance upon him.

In Moore v. Gadsden, 93 N. Y., 12, it was held that the neglect by a lot owner to remove snow and ice from a sidewalk, as required by an ordinance, did not render such owner liable to a party injured ; that the requirement of the ordinance was not in the nature of a police regulation, and was not sufficient to give a cause of action to a party injured by an act in violation of its terms. See, also, Wenzlick v. McCotter, 87 N. Y., 127.

It will be observed that the duty to repair, in this case, is imposed in the same language with that to remove snow and ice, and it is not easy to suggest any distinction in the nature of the respective obligations. And it is equally difficult to suggest any difference in principle between an obligation imposed by statute and one imposed by ordinance in pursuance of statutory authority.

The general rule regulating the liabilities of municipalities and lot owners, in respect to the repair of streets and sidewalks, is laid down by Dillon as follows : “ The liability of a city or town for actionable defects extends, as already remarked, to sidewalks, they being deemed to constitute part of the street. When the charter of a city gives it the power to cause sidewalks to be kept in repair, and makes adequate provision for so doing, the exercise of the power, according to the prevailing judgment of the courts, follows as a duty. In such case the city is liable for actionable defects in sidewalks; although the charter requires the lot owner to build the sidewalks, and imposes a penalty for his failure in this regard. The abutting owner is not bound to keep the sidewalk in repair, unless by virtue of the requirement of a statute, and is not responsible to travellers for defects therein not caused by himself.” The learned author cites, in support of the proposition, a large number of authorities, among which are: Moore v. Gadsden, supra; Hill v. City of Fond du Lac, 56 Wis., 242; Knupfle v. Knickerbocker Ice Company, 84 N. Y., 488 ; Weller v. McCormick, 47 N. J. L., 397; Kirby v. Boylston Market Association, 14 Gray, 249 ; Flynn v. The Canton Company of Baltimore, 40 Md., 312 ; Heeney v. Sprague, 11 R. I., 456; City of Hartford v. Talcott, 48 Conn., 525; Eustace v. Johns, 38 Cal, 3 ; Jansen v. City of Atchison, 16 Kan., 358; State v. Gorham, 37 Me., 451. The cases cited seem to support the proposition of the non-liability of the lot owner to travelers or municipalities.

In Kirby v. Boylston Market Association, 14 Gray, 252, it is said: “ The defendants, as owners and occupants of the land abutting upon Boylston street, are not responsible to individuals for injuries resulting to them from defects and want of repair in the sidewalk, or by means of snow and ice accumulated by natural causes thereon, although, by ordinance of the city, it is made the duty of abutters, under prescribed penalties, to keep the sidewalks adjoining their estates in good repair, and seasonably to remove all snow and ice therefrom. Such ordinances are valid, and the work which is enforced under them relieves, to the extent . of its cost or value, the city from charges which otherwise it would be necessarily, in discharge of its municipal duties, subjected to. Goddard Petition, 16 Pick., 504. For the city is required to keep all duly established highways within its limits in good repair, and clear of snow and ice, so that they shall, at all seasons of the year, be safe and convenient for persons passing and traveling thereon.”

In Heeney v. Sprague, supra, it was held that “ the violation of a duty imposed by a municipal ordinance, and sanctioned by a fine, will not support an action on the case for special damages in favor of one injured by the violation and against the violator and that “ where a statute imposes a duty, unless the duty is for the benefit of particular persons or classes, or is in consideration of some emolument or privilege conferred, a person damnified by the violation of the duty cannot maintain an action on the case against the violator for special injuries caused by the violation; the only liability arising from the violation of such a duty being the penalty furnished by the statute." In The City of Hartford v. Talcott the city brought an action to recover from the lot owner the damages which it had been compelled to pay a traveler for injuries received from a sidewalk made dangerous by ice. The ordinances required the abutting owners to keep the sidewalk free from snow and ice, and imposed a penalty for a neglect to do so. It was held that the abutting owners were not liable to the city. In Keokuk v. District of Keokuk, 53 Iowa, 352, it was held that “where a lot owner is required by the city to construct or repair a sidewalk, it is simply a method of exercising its power of taxation, by which he is made the agent of the city to expend the amount of the tax, and the responsibility for the performance of the work remains where the authority to control it is found.”

In the Flynn case the injured party brought an action against the abutting owner, whose duty it rvas, by the ordinance of the city, to remove snow and ice from the sidewalk in front of his premises, to recover damages for his inj uries. In deciding the case the court say: “ The whole design and effect of this ordinance was to secure the proper application of whatever labor and means were necessary to discharge the obligation then resting upon the city to keep its streets in a condition to be safely traveled. The' work enforced under it, and the expense of doing it, when performed by the employees of the. city, together with the fines or-penalties for neglect which may be imposed and collected, relieves the city to that extent from charges to which it would be otherwise subjected.

“ Stated in a different form, our view of the effect of this ordinance is this: At the time of its passage it was the duty of the city to remove snow and ice from the sidewalks of its streets, so as to render them safely passable. The city was then provided with the means and power to discharge that duty. In the exercise of that power it saw fit to provide by ordinance that the owners and occupants of premises abutting the sidewalks should either remove the snow and ice therefrom, or be charged with the cost of such removal if done by its own officers or employes, "besides being subjected to a penalty for each neglect. The prop-*erty owners were thereby made the agents of the city. * * * Such being the nature of the duty required, and such being the character of the ordinance in question, we are of opinion the only liability resting upon the property owner is that which the ordinance itself imposes, viz., the prescribed fine or penalty for each neglect, and the cost of removal in every instance of his refusal or neglect. By enforcing these, every object the ordinance was intended to accomplish will be attained. The liability of the' parties upon whom it operates extends no further, and against them an action like this cannot be maintained. In so determining we recognize the well-settled principle that whenever a party causes, constructs or creates a nuisance or obstruction in a public street or highway, he is responsible in damages to anyone who has received special injury in consequence thereof.”

In Taylor v. Lake S. & M. S. R. R. Co,, 45 Mich., 74, the head note states that “an ordinance requiring all persons to keep their sidewalks free from ice imposes a purely public duty, and persons injured by slipping on the ice cannot bring private actions against the owners of the jn-emises. Breaches of public duty must be punished in some form of public prosecution and not by way of individual recovery of damages.”

We have thus referred at length to many of the cases holding the non-liability of the lot owners, for the reason that there seems to have been quite a common impression, in which judges and lawyers have shared, that abutting owners are in some way liable for damages occasioned from their neglect to keep sidewalks in repair when that duty is in any way enjoined upon them. It seems to us that there could never have been any logical cause for such impression, and it seems it has no foundation in the reported cases. Any other conclusion than that reached by us would, we think, be most unfortunate, as it would tend to relax the vigilance of municipal corporations in the performance of their duties in respect to the repair of streets and highways, and impose that duty upon those who might be utterly unable to discharge it. It would tend directly to demoralize the public service and lead to disorder, decay and impassability of the public highways.

In view of the conclusions reached upon the main question involved, it is unnecessary to .discuss the other points raised in the appeal.

The order of the general term should, therefore, be reversed, and that of the special term affirmed, with costs in all courts.

All concur.  