
    George W. Coonley, App’lt, v. The City of Albany, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    1. Municipal corporations—Not liable for non-enforcement of ordinance—Sunken VESSELS.
    A vessel having sunk at plaintifE’s dock, obstructing access thereto, he notified defendant to remove the same pursuant to an ordinance relating thereto, and upon its 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 by-notice to the owners, etc., did not make it liable for the non-enforcement thereof.
    3. Same.
    So much of the ordinance as provided for the sale of the vessel, or the lading thereof, to pay the expense of removal, was invalid, as providing a, forfeiture in the face of tin? statute prescribing that the city should provide for the enforcement of ordinances by fines and penalties in an amount not exceeding that named in the act.
    Appeal from a judgment of the general term of the supreme court, third department, entered on an order affirming a judgment sustaining a 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, unlading and storage 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 the 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 so much of the loading thereof as will pay the expenses of such removal."
    That on the 28th arid 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 mayor 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.
    
      Walter K Ward, for a|>p’lt; John A. Delehanty, for resp’t.
    
      
       Affirming 33 St. Rep., 411.
    
   Parker, J.

The defendant did not own, nor did it sink the boat. It neither caused, nor in any wise contributed towards the creation of the nuisance; therefore, Brayton v. Fall River, 113 Mass., 218; Haskell v. New Bedford, 108 id., 216; Boston R. M. v. Cambridge, 117 id., 396; Franklin Wharf Co. v. Portland, 67 Maine, 46; and Sleight v. City of Kingston, 11 Hun, 594, cited by the appellant, are not in point.

The liability, if any, must be founded on a duty to keep the navigable waters of the Hudson within the city limits free from obstruction.

The obligation to keep streets and highways in a safe condition ior public use cannot be invoked against the defendant here, for while the river is a highway, for the passage of vessels, that portion of it which happens to be embraced within the boundaries of a city is not one its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation. Seaman v. The Mayor, 80 N. Y., 239.

The river being a highway for state, inter-state and foreign commerce is subject to regulation by congress, but the state because of its great.interest in the continuing availability of navigable waters within its borders for vessels, may properly assume to remove such obstacles as may from time to time prove a menace to successful navigation, provided always that it does not impair freedom of navigation under the acts of congress, or interfere witn any system of improvement provided by the general government.

But while the general government, together with the aid of the state government, may, and generally does, provide for the removal of obstacles which are a hindrance to navigation, and the doing of other necessary things for the encouragement and protection of commerce, and performance in that respect is regarded as a duty, still it is not one that the individual may enforce. Judge Agnew, in the Winpenny case, said: “It is not a duty of perfect obligation, but one' of voluntary assumption or imperfect obligation ; inasmuch as it cannot be enforced against the will of the state.”

The state may not only undertake at its expense to remove obstructions in, and generally improve the condition of navigable waters, but in its discretion it may place the burden of performance on a city or county more immediately and beneficially interested than other portions of the state. County of Mobile v. Kimball, 102 U. S., 691.

It seems to be clear, however, that in order to charge a municipality with the duty and burden of improvements primarily existing in the general and state governments, which they can perform or not as the wisdom of congress or the legislature may suggest, a determination which could no.t be directed or interfered with by the courts at the instance of a complaining party, that it must appear from the act alleged to contain the requirements that it was the intention of the legislature to place upon the municipality the burden of doing all that the state should have done, and more than it could be required to do.

As we read the decision in the Winpenny case cited by appellant it. is in no wise opposed to the views so far expressed. In that case the statute provided that the city should “keep the navigable waters within said city open and free from obstructions,” and the court held that the duty being express, the consequences of a failure to perform rested on the city. Winpenny v. Philadelphia, 65 Pa. St., 135-140.

If the statutes of this state laid on the city of Albany a command in the same terms as to the navigable waters within its boundaries, we should not hesitate to follow the decision in a case founded on neglect of performance resulting in injury. But quite another question would be presented if the attempt-were to recover (as here in some part) for expenses incurred by the plaintiff in doing that which he alleges the city should have done.

The plaintiff decided that the city owed to the public in general, and himself in particular, the duty of removing the sunken boat, and he assumed to perform the obligation which he claimed belonged to the city and should have been exercised through its officers, and now asserts its liability to respond to him for the expense incurred. But we need not consider this quéstion, as we have determined to place our decision on other grounds.

It is not contended that the state expressly charged the city of Albany with the responsibility of keeping the river free from obstructions, but that it conferred on the common council power of local legislation, to be éxercised by the establishment of general rules and regulations under which such purpose could be accomplished, and having accepted charter powers from the state of which these formed a part, the city became liable in consideration of the grant for the due exercise of the powers conferred, and a proper performance of the duties imposed.

Reference is made to § 19, chap. 153, Laws 1801, which provides : “ That it shall be lawful for the said mayor and commonalty to make by-laws and inflict reasonable penalties to enforce the same, for regulating and keeping in repair the docks and slips within the said city, and to prevent the same, and the river opposite thereto, from being in any manner obstructed.” Also to Laws 1826, chap. 185, § 15, which declares: “ That the said common council are hereby constituted and declared commissioners of highways in and for the said city, and shall, and may, from time to time, pass ordinances * * * to abate or remove any nuisances in any street or wharf, * * * to regulate, keep in repair and alter the streets, highways, bridges, wharves and slips, * * * to prevent all obstructions in the river near or opposite to such wharves, docks or slips.”

It may be observed in this connection that the charter of Albany was amended by chap. 298, Laws 1883, and the power to enact ordinances on the subjects now being considered was limited “ to the construction, repair, care and use of the markets, docks, wharves, piers, slips and squares of the city; ” no mention being made of “ the river opposite thereto,” as in the acts of 1801, 1826, and it is insisted that those acts in respect to such provision are repealed by implication.

Assuming, but not deciding, that such contention is not well founded, we come to the fact that the common council did provide by ordinance, that if a vessel be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite the city of Albany, and within jurisdiction thereof, that a notice should be given to the owner or proprietor to remove it, and in the event of his failure to do so “ then it shall be lawful for the street commissioner to take possession of such craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal.”

For failure to enforce this ordinance relating to matters which the city was not commanded by the legislature to do or perform, and in respect to which in the absence of command it owed no duty, no liability exists.

1. Because there being no liability in respect to the subject matter in question, the statute exempts it from liability for the mere non-enforcement of the ordinances.

Section 44 of title 3 of its charter (chap. 298, Laws 1883) provides : “ Nothing contained in this act shall be so construed as to render the city of Albany or any of its officers liable in 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.” In the absence of a statutory provision this rule has been enforced by the courts. Stilwell v. Mayor, 17 J. & S., 360; 96 N. Y., 649; Hines v. City of Charlotte, 40 N. W. Rep., 335; Wheeler v. City of Plymouth, 18 N. E. Rep., 532; 2 Dillon Mun. Corps., § 950.

2. So much of the ordinance as provides that the street commissioner might sell the vessel or the loading thereof to pay the expenses of removal was invalid, because the ordinance created a forfeiture in the face of the statute prescribing that the city should provide for the enforcement of ordinances by fines and penalties in an amount not exceeding that named in the act. Hart v. Mayor of Albany, 9 Wend., 570-589. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Landon, J., not sitting.  