
    Harry Minton, Appellant, v. The City of Syracuse, Respondent.
    Fourth Department,
    March 8, 1916.
    Municipal corporations—action against city of second class for injuries sustained while passing over crosswalk covered with ice—Second Class Cities Daw, section 244, providing for notice to commissioner of public works, construed—when notice not necessary — question for jury.
    In an action against the city of' Syracuse, a city of the second class, for personal injuries sustained while attempting to pass over a crosswalk, because of the walk being covered with loose pieces of snow and ice, which employees of the department of public works had left after chopping and loosening the ice from the walk, section 244 of the Second Class Cities Law, providing for notice to the commissioner of public works prior to commencement of the action, applies and not the city charter.
    In such a case the question whether the city was negligent through its employees in the department of public works in breaking into pieces the snow .and ice on the crosswalk and leaving it in such a condition as to be likely to cause injury to pedestrians, is for a jury.
    Section 244 of the Second Class Cities Law, providing that no civil action shall be maintained against a city for injuries sustained in consequence of a crosswalk being defective or unsafe, unless it appear that written notice of the defective condition had been given to the commissioner of public works, does not apply where the dangerous condition is produced by the city itself through its employees in the department of public works.
    Appeal by the plaintiff, Harry Minton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 19th day of October, 1915, upon a dismissal of the complaint by direction of the court at the opening on a trial before the court and a jury at the Onondaga Trial Term.
    
      H. H. Munroe [Lewis & Munroe, attorneys], for the appellant.
    
      Frank Hopkins [D. Raymond Cobb, attorney], for the respondent.
   Foote, J.:

Plaintiff was injured on the evening of February 10, 1915, while attempting to pass over a crosswalk across North G-eddes street, on account of this walk being covered with loose pieces of snow and ice upon which plaintiff stumbled and fell.

It is alleged that the snow had been allowed to accumulate and remain on this crosswalk to a depth of five or six inches and had become hard packed from being tramped down by the use of the crosswalk and the use of the street; that on the afternoon of the same day of the accident, which occurred at about seven o’clock, laborers in the employ of the city had chopped and loosened the ice from the walk and left it in great quantities thereon covering said walk, in a negligent and dangerous condition and without guard or notice; also that the city, its agents, servants and employees, knew of the dangerous condition of said walk, having created the said condition. In his opening statement of the case to the jury plaintiff’s counsel said: On the day or the afternoon of February 10th, at that place, the city went up there and took picks and picked up and dug up the ice and snow that had accumulated, * * * so that they had taken off all the ice and snow that had accumulated there down to the bare sidewalk, and instead of throwing it out of the way or throwing it off to one side, out on the street or somewhere, they left it there piled up as they had broken it up. * •“ * They had changed it from the position where it was and had broken it up the same as they would break up a cement sidewalk and left the pieces of it right where they had loosened them. * * * He [plaintiff] was walking along in the line of this sidewalk, * * * over this place where the ice and snow had accumulated and had not been disturbed, and he stepped over into this thrown-over or thrown-out place where they had dug up these chunks and left them there in that condition, without seeing them or knowing they were there, and expecting the sidewalk to be in its natural condition; and one of these chunks on which he stepped tipped over with him in such a way as to throw him down.”

On the pleadings and the opening of plaintiff’s counsel defendant moved to dismiss the complaint on the ground that no cause of action is alleged, in that the complaint fails to allege the service of a written notice upon the commissioner of public works prior to the accident of the condition of this walk. This motion was granted.

Plaintiff contends on this appeal that it was error to hold that plaintiff was under the necessity of alleging and proving written notice to the commissioner of public works, in view of the fact that the dangerous condition of the crosswalk which caused plaintiff’s injury was created by the employees of the city, and that under such circumstances no written notice was required.

It is first necessary to inquire what statute is applicable — whether the city charter or the Second Class Cities Law.

It is claimed on behalf of the city that section 250 of chapter 26 of the Laws of 1885, being the charter of the city, as amended by chapter 682 of the Laws of 1905, is the statute controlling and regulating actions of this kind. That section is not materially different from section- 244 of the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55), except in one particular. A part of the section of the city charter is: “ But no such action shall be maintained for damages or injuries to the person sustained in consequence of the existence of snow or ice upon any sidewalk,.crosswalk or street, unless written notice thereof relating to the particular place, was actually given to the commissioner of public works.” The similar provision in section 244 of the Second Class Cities Law is: “But no such action shall be maintained for damages or injuries to the person sustained solely in consequence of the existence of snow or ice,” etc. Otherwise the provisions of the two statutes, so far as applicable to this case, are substantially the same, if not identical.

It will be necessary to refer to the history of these enactments to ascertain which is applicable and controlling. Section 250 of the city charter as originally enacted did not limit the liability of the city for personal injuries due to defective sidewalks, except by the requirement that written notice of the injury, • specifying the time and place where the same was received, must be given to the mayor or city clerk within six months after the injury happened, and the action must be brought within one year after the service of such notice. Additional requirements of notice and limitation upon the commencement of action were inserted by chapter 449 of the Laws of 1888, amending said section.

In 1898 was adopted the so-called White charter, being chapter 182 of the laws of that year, entitled “An act for the government of cities of the second class.” It took effect generally on January 1, 1900. This act applied to the city of Syracuse, as it is a city of the second class. By section 461 of that act it was provided that the city should not be liable for injuries sustained in consequence of any street, sidewalk or crosswalk being defective or out of repair, unsafe or dangerous, or obstructed by snow or ice, or in any way or manner, in the absence of actual notice of the defective or unsafe condition to the commissioner of public works, unless the defective condition had existed for at least forty-eight hours previous to the injury.

In 1899, by chapter 581 of the laws of that year, this section 461 was further amended, and again in 1904 by chapter 504 of the laws of that year. In 1905, by_ chapter '682, an amendment was made to section 250 of the Syracuse city charter so. as to make that section the same, in substance, and practically identical in form with section 461 of the White charter, as amended hy chapter 504 of the Laws of 1904. This was done, no doubt, to apply the White charter rule of liability with certainty to Syracuse on the theory that the White charter, might be held not to supersede the charter provision which remained unrepealed. The amendment of 1905, therefore, has not the significance claimed for it of showing a legislative intent to except the city of Syracuse from the operation of the general law then applying to all cities of the second class, as would undoubtedly have been the case had the amendment prescribed for that city a rule different from that of the general law.

I think, however, that no amendment of the Syracuse city charter was necessary and that the provisions of the White charter did, in fact, apply and prescribe for the city precisely the same rules as are embodied in that amendment.

This court held in Cahill v. City of Rochester (96 App. Div. 557; affd., 183 N. Y. 581) that section 461 of the White charter (as amd. by Laws of 1899, chap. 581) established a uniform rule covering the subject of notice of defects in sidewalks in cities of the second class and abrogated the section of the charter of the city of ¡Rochester upon the same subject.

As the amendment to the city charter of 1905 does not show a legislative intent to except that city from the operation of the general law, we must, following the Cahill case, hold that the general law applies to that city, and that as the general law has been amended since 1905 and no similar amendment has been made to the city charter, the controlling statute applicable to this case is the present section 244 of the Second Class Cities Law and not the city charter.

Chapter 182 of the Laws of 1898, being the so-called White charter, was entirely revised with its various amendments by chapter 473 of the Laws of 1906, known as the Uniform Charter of Cities of the Second Class, which took effect generally on January 1, 1908, and which, in turn, was revised by chapter 55 of the Laws of 1909 (Consol. Laws, chap. 53) into the Second Class Cities Law as it now exists. The rights of the parties to the present action are, therefore, controlled by section 244 of the last-mentioned act, which re-enacted section 224 of the act of 1906. I quote from that section the parts material to the questions in hand: ¡No civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any street, * * * sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed unless it appear that written notice of the defective * * * condition * * * was actually given to the commissioner of public works, and that there was a failure or neglect within a reasonable time after the giving of such notice to repair, or remove the defect * * * complained of, or, in the absence of such notice, unless it appears that such defective * * * condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence. But no such action shall be maintained for damages or injuries to the person sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street, unless written notice thereof, relating to the particular place, was actually given to the commissioner of public works and there was a failure or neglect to cause such snow or ice to be removed, or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.” The word solely ” first appears in the statute in 1906.

If this statute is applicable plaintiff’s complaint was rightly dismissed, as written notice to the commissioner of public works must be alleged, and it is not claimed that any written notice was given. But we are of opinion that the statute does not apply where the dangerous condition is produced by the city itself through its employees in the department of public works. Such was the rule in respect to notice to the city prior to the adoption of the White charter in 1898. (Turner v. City of Newburgh, 109 N. Y. 301; Dillon Mun. Corp. [5th ed.] §1717; Riddle v. Village of Westfield, 65 Hun, 432; Twist v. City of Rochester, 37 App. Div. 307; affd., 165 N. Y. 619; Wilson v. City of Troy, 135 id. 96; Stedman v. City of Rome, 88 Hun, 279.) We must assume that this rule was known to the Legislature. It undoubtedly had power to change it and exempt municipal corporations absolutely from liability for defects in streets due to negligence of its servants. (MacMullen v. City of Middletown, 187 N. Y. 37.) It is there said for the court by Judge Gray: “ It is by force of the special, or statutory, charter that municipal corporations come under a liability for a breach or neglect of corporate duties imposed, which is enforceable by every individual interested in their performance.” Neither the present statute nor any earlier one that we know of in express terms forbids an action where the street defect was caused by the city itself. In Sprague v. City of Rochester (159 N. Y. 20) it was said by Judge Vann, speaking of a similar statute: “A statute which creates a new rule, unknown to the common law, for the protection of a city against its own citizens should be construed strictly against the city and liberally in favor of the citizen.” A strict construction of the present statute against the city requires us to apply to it the rule Wilson v. City of Troy, and to hold that it does not apply to require written notice to the commissioner of public works of street defects created by employees in his department as a prerequisite to an action against the city. This rule of construction prevails elsewhere. (Dillon Mun. Corp. [5th ed.] § 1712; Hughes v. City of Fond du Lac, 73 Wis. 380; City of Salem v. Webster, 192 Ill. 369; City of Atlanta v. Buchanan, 76 Ga. 585; Carstesen v. Town of Stratford, 67 Conn. 428.) It seems not to prevail in Massachusetts. (Hadden v. City of Somerville, 197 Mass. 480; Hitchcock v. City of Boston, 201 id. 299.)

We are also of opinion that if the facts alleged by plaintiff are proved, there is a question of fact to be passed upon by a jury, viz., was the city negligent, through its employees in the department of public works, in breaking into pieces the snow and ice on the crosswalk where plaintiff was injured and leaving the broken pieces on the walk in such condition as to be likely to cause injury to pedestrians % Of course, if the ice when broken up was no more dangerous to pedestrians than before, the city cannot be held liable for negligence.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred; Lambert, J., in result only.

Judgment reversed and new trial granted, with costs to appellant to abide event.  