
    Sarah A. Tyler, Plaintiff, v. The Village of Lansingburgh, Defendant.
    (Supreme Court, Albany Special Term,
    April, 1902.)
    Tort — Liability of the successor of a municipal corporation —“ Due process of law.”
    The Legislature cannot lawfully take away a person’s remedy for a wrong suffered and where its statute (L. 1900, ch. 665) has abolished a village, against which the person was then presumptively entitled to a remedy, without making any provision in the matter, the municipal corporation into which the village was merged, and which succeeded to its rights, property and powers, is presumptively liable to the person for the wrong and should be substituted as defendant in an action theretofore brought by the person against the village.
    This is an action to recover damages for an injury alleged to have been sustained by the plaintiff by falling upon an icy sidewalk of one of the streets of the village of Lansingburgh. By chapter 665 of the Laws of 1900, the village of Lansingburgh was incorporated with the city of Troy, and the village of Lansing-burgh, as such, was abolished.
    Motiow to substitute the city of Troy as defendant, in the place and stead of the village of Lansingburgh.
    Long & Maxwell, for motion. '
    Thomas S. Fagan, Corporation Counsel for city of Troy, opposed.
   Herrick, J.

The plaintiff’s right of action had -accrued before the passage of chap. 665 of the Laws of 1900. That right of action is property (Gilbert v. Ackerman, 159 N. Y. 118; Hein v. Davidson, 96 id. 175; Dyett v. Hyman, 129 id. 351-357) and can only be taken from her by due process of law. Dyett v. Hyman, 129 N. Y. 351-357; Gilbert v. Ackerman, 159 id. 118.

A legislative enactment is not due process of law.

The clause in the Constitution that no person shall be deprived of life, liberty, or property without due process of law, * * * protects every essential incident to the enjoyment of those rights.” People v. King, 110 N. Y. 418-423. One of the essential incidents necessary to the enjoyment of this right of property is a remedy to enforce it. And to deprive her of that remedy, without substituting another and sufficient one in its stead, is to deprive her of her property.

By abolishing the village of Lansingburgh, the Legislature did not and could not destroy plaintiff’s right of action. Neither could it take away the remedy to enforce it, without substituting another, Dyett v. Hyman, 129 N. Y. 351-357. And it will not be held that it so intended, unless it plainly appears.

The plaintiff’s remedy was against the village of Lansing-burgh. But that no longer exists. The plaintiff must have a remedy somewhere, against some one, or she has been deprived of her property by legislative enactment. The village of Lansing-burgh has been merged in the city of Troy. The city of Troy is its legal successor, takes all its property, succeeds to all its powers, and I think we must hold that the Legislature intended that it should succeed to its liabilities to the plaintiff, rather than hold that it intended to do what it had no right to do, deprive the plaintiff of an essential incident to her property, the right to a remedy to enforce her cause of action.

As the successor to the rights, property and powers of the village of Lansingburgh, and of which said village has become a part, and through which in all essential particulars it still exists, I think the city of Troy, as such, should be substituted as a party defendant in place of the village which it has absorbed.

Motion granted, with ten dollars costs.  