
    George W. Coonley, App’lt, v. The City of Albany, Resp’t.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Municipal corporations — Not liable for non-enforcement of ordinance — Sunken vessels.
    A vessel having sunk at plaintiff’s dock, obstructing access thereto, he notified defendant to remove the same pursuant to an ordinance relating thereto, and upon lis failure and-refusal to do so, caused it to be removed, and brought action to recover the expense incurred in so doing. Held, that defendant was not liable therefor; that the fact that it had adopted an ordinance providing a method for the removal of sunken vessels at docks did not make it liable for the non-enforcement thereof.
    2. Same — Ordinance.
    The ordinance in question, so far as it directs the sale of private property, is void.
    
      . Appeal from a judgment sustaining the defendant’s demurrer to the complaint.
    . The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river within the city of Albany, adapted to, and valuable for the lading, unloading and storing of merchandise from vessels. That on the 26th day of September, 1888, a canal boat, loaded with iron while navigating the river, sunk at the said dock, and thereby obstructed its use, to plaintiff’s damage. That the defendant assumed the duty of keeping the river free from obstructions by § 10, chapter 42 of the ordinances of the city of 'Albany, which reads as follows :
    “ Whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf or slip, or anywhere in the Hudson river, opposite to the city of Albany, and within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor or other person sailing such vessel, to remove the same within twenty-four hours ; and in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice* •in one of the newspapers printed in the city of Albany, at least one week, directing the removal of such vessel as aforesaid; and if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or as much of the loading thereof as will pay the expenses of such removal.”
    That on the 28th and 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice- is annexed to the complaint. That on the 29th day of September, 1888, the ntiayor gave the street commissioner written directions to remove said boat; that said street commissioner took the preliminary steps, as provided by the city ordinance, to accomplish that result, and notified the owner to remove the boat, but finally, on or about the 26th day of October, 1888, declined to remove the same, or to do anything more towards that end; that thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid them for the work $314.79, besides having suffered other damage to the amount of $1,000 by reason of said sunken boat not being removed by said street commissioner within a reasonable time.
    By reason of said facts plaintiff asks for judgment against the city of Albany for $1,414.79.'
    The defendant demurred upon the ground that the facts stated did not constitute a cause of action.
    
      Ward & Cameron, for app’lt; D. C. Herrick, for resp’t.
   Landon, J.

The fact that the defendant has adopted an ordinance providing a method for the removal of vessels sunken at any of the docks of the city does not charge it with the duty of enforcing the ordinance, nor make it liable for its non-enforcement.

Section 44 of title 3 of its charter, chapter 298, Laws of 1883, reads as follows: “ Nothing contained in this act shall be so construed as to render the city of Albany or any of its officers liable in any damages, or otherwise, to any person, or persons or corporations, for any omission to pass any ordinance, regulation or resolution, pursuant to the provisions hereof, or for a failure to enforce the same.”

That a city does not enforce its own ordinances does not render it liable. Its liability must arise from its failure of duty with respect to the subject matter in question. Stillwell v. Mayor, 17 J. &S., 360; S. C., 96 N.Y., 649.

The present charter of the city, § 14, subdivision 27, title 3, chapter 298, Laws 1883, makes the common council commissioners of highways for said city, with power to make ordinances “In relation to the construction, repairs, care and use of the markets, docks, wharves, piers, slips and squares of the city.”

Obstructions in the river itself are not here embraced. But the learned counsel for the appellant cites chap. 185, Laws 1826, § 15, which declares that the common council are constituted commissioners of highways with power to pass ordinances, “ To prevent all obstructions in the river near or opposite to such wharves, docks or slips,” and alleges that it is still in force.

Assuming this claim to be true, it will be observed that the act of 1826 does not require the city of Albany to keep the navigable waters within the city free from obstructions, but vests it with the legislative power to enact an qrdinance to that end. Winpenny v. Philadelphia, 65 Penn. St., 135, is cited. There the statute required the city to keep the navigable waters within its limits free from obstruction, and the city was held liable for injuries consequent upon its neglect to observe the requirements. In Hart v. Mayor, etc., of Albany, 9 Wend., 571, an ordinance like the one in question was held void, for the reason, among others, that the power given to the city to enforce its ordinances was limited to a penalty upon the violators, not exceeding twenty-five dollars, whereas the ordinance then, like the ordinance now, provided for the removal and sale of the sunken boat, that is, its confiscation. The present charter confers no power to authorize or direct the sale of the boat, but does confer power upon the city to enforce its ordinances by ordaining penalties for each and every violation, not exceeding $100. Sec. 14, tit. 3.

An ordinance in excess of the legislative power of the common council is void. This ordinance, so far as it directs the sale of private property, is therefore void. It is urged that the sunken canal boat was a nuisance in that it obstructed navigation. No doubt it was, and if there was no other practicable way to abate it except by its destruction, it might have been destroyed. But whoever undertook to act for the" public' and to destroy it, must be prepared to show that he did it under the requirement of a great and overruling public necessity. Hicks v. Dorn, 42 N. Y., 47. So far as the case shows, the necessity for its destruction was rather private than public. It injured the business usually coming to the plaintiff’s dock. The People v. Corporation of Albany, 11 Wend., 539, is cited. It was there held that the city was indictable for not abating a public nuisance, injurious to the public health, caused by the accumulations in the Albany basin of noxious substances. The court cited the act of 1826 and held that the city had the power to cleanse the basin, and it was therefore its duty to do it, if that act was necessary to protect the public health.

But the court held that the city had no power to destroy a bulkhead which was private property, but which by its situation caused the noxious materials to settle in the basin instead of being carried along by the current. The bulkhead was no nuisance,. though the cause of one. In such a case it is obvious that if the public authorities do not abate the nuisance, it will remain unabated. There is a plain difference between the protection of the public health and the protection of the plaintiff’s business from accidental obstruction; it may be the duty of the government to provide for one, and of the plaintiff to provide for the other. But in the case of a public nuisance, injurious to health, we do not think that an individual whose health becomes thereby impaired cam maintain an action against the city for the medical expenses he incurs, and the loss of business he sustains in consequence of his impaired health, or, if he should choose to abate the nuisance, for the expense which he incurs in so doing. If the City is liable, it is liable for the direct, and not the remote and contingent consequences of its negligence. The city had no agency in sinking the boat. If liable at all, its liability would be limited to the damages naturally consequent upon its failure to remove it The expenses incurred by the plaintiff would not be thus incurred. They would be incurred or not at the plaintiff’s election. Damage to his business, or impairment of the value of his property might naturally follow. We find nothing in any statute requiring the city to relieve the plaintiff from the burden of protecting his own business and property from loss occasioned by the obstruction and burden caused by the act or omission of third parties.

Besides the Hudson river within the city of Albany is part of the highway for state, interstate and foreign commerce, and is subject to regulation and improvement by congress. The state may exercise such control as does not interfere with the power vested in congress, and may require the city of Albany to provide such control with respect to the position of the river within its limits. Mobile v. Kimball, 102 U. S., 691. So fsk as the state has authorized the city to aid its commerce by removal of obstructions in the river, the authority is in the nature of a privilege, which under its charter the city ought to exercise for the general corporate welfare, but not to relieve private owners of docks from proper private expenses.

The river is not a highway of the city. Seaman v. Mayor, 80 N. Y., 239.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  