
    McNally v. City of Cohoes.
    (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Municipal Corporations—Icy Sidewalks—Actual Notice.
    Laws N. Y. 1869, tit. 3, c. 913, as amended by Laws 1881, c. 183, p. 337, provides that the city of Cohoes shall not be liable for injury sustained by reason of any street or highway being out of repair, unsafe, or obstructed by snow or ice, unless actual notice of the danger or obstruction be given to the common council or superintendent of streets at least 34 hours previous to such damage or injury. Meld, that it was not sufficient, in an action against a city for injuries caused by falling on an icy. sidewalk, to show that the superintendent of streets knew or should have known of the obstruction by personal observation. 3. Constitutional Law—Limiting Remedy.
    A law exempting a city from liability for injuries caused by a street obstruction, unless actual notice of the obstruction is given to the city authorities before the injury is sustained, does not violate the constitutional right of the citizen by depriving him of all remedy for this class of personal injuries, but only provides a more certain method of fixing the liability of the city.
    Appeal from circuit court, Albany county.
    Action by Margaret Meífally against the city of Cohoes to recover damages sustained by the plaintiff by falling on an icy sidewalk on February 7, 1885, on Factory street in the city of Cohoes. The plaintiff, in the opinion of the trial court, was entitled to go to the jury upon the testimony in the case, except that there was not sufficient evidence tending to show that “the actual notice” required by the statute of “the defective, unsafe, dangerous, or obstructed condition of the sidewalk had been given” to the superintendent of the streets. Judgment being given for defendant, the plaintiff appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Matthew Hale, for appellant. N. C. Moalt, for respondent.
    
      
       As to what is sufficient notice of defects in streets and sidewalks to render a municipal corporation liable for injuries received thereby, see Miller v. City of St. Paul, (Minn.) 36 N. W. Rep. 271, and note; Foxworthy v. City of Hastings, (Neb.) 41 N. W. Rep. 133, and note; Pendleton v. Northport, (Me.) 16 Atl. Rep. 353; Troxel v. City of Vinton, (Iowa,) 41 N. W. Rep. 580.
    
   Landon, J.

The statute under which the nonsuit was granted, is as follows: “The city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk, or cross-walk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous, or obstructed condition of said street, highway, bridge, culvert, sidewalk, or cross-walk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.” Laws 1881, c. 183, p. 227, adding a new section to title 3, c. 912, Laws 1869. We assume that there was evidence sufficient to be submitted to the jury upon the question whether the superintendent of the streets, by his own presence at and observation of the place in question at different times more than 24 hours previous to the injury, had had ample opportunity to acquire actual notice of the condition of the sidewalk, and whether he did thus acquire it. No actual notice of the condition of the sidewalk was otherwise given him. Previous to this statute constructive notice would have sufficed. Constructive notice signifies that the party to be affected might reasonably have acquired or obtained actual notice, and that, if he had not, it was his fault; and, since he could not interpose his fault to protect himself, he was without protection against the charge of notice imputed by the circumstances. Constructive notice in case of defective streets is an inference of notice drawn from official opportunity to obtain it, and from official obligation to be reasonably vigilant in keeping the public streets safe for travel. The many cases somewhat similar to the one now before us, which have been before the courts, in which notice has been imputed to municipal corporations by juries, have not infrequently excited the suspicion that municipal corporations are too liable to be unjustly convicted of negligence, and that the doctrine of constructive notice affords too dangerous a temptation to juries to make such corporations the indemnitors of the injured, under the unjust pretext that their negligence caused the injury. It is not improbable that such considerations, whether just or unjust, were in the minds of the framers of this statute. Its object is to exempt the city from liability unless it has actual notice, as distinguished from constructive, or possible, or imputed notice, which may in fact be no real notice. It requires that such actual notice must be given, not imputed, not derived, or obtained, or acquired. Notice given implies a giver; some person who can state when and where and how it was given. The contention of the plaintiff in effect is that the jury might find upon ail the circumstances that the superintendent of the streets must or ought to have obtained actual notice, and that he must be presumed to have obtained what he ought to have obtained, and therefore did obtain it; and that actual notice obtained is equivalent to actual notice given, and thus the statute is satisfied. But thus the statute might be overthrown. We think we should uphold it.

The counsel for the plaintiff urges that the statute, if construed as announced by us, is unconstitutional, because it deprives the plaintiff of her remedy against the party who has injured her, and does not afford her any other remedy. Assuming her constitutional right to a remedy against the party who has negligently injured her, this statute does not take itaway. Its object is to demand such certain proofs of the city’s liability as shall tend to the more certain administration of justice. Possibly the statute goes to an unwise extreme against the citizen and in favor of the city. Absolute remedial justice cannot be guarantied. The legislature may make such rules to secure it as its wisdom approves, subject only to the restraints of the constitution. Here there are difficulties on both sides. The citizen usually reposes upon otlicial performance of duty, and is not awake to its neglect until he is injured. Perhaps the injury comes from such neglect; possibly from mere misforture. His interest prompts him to charge neglect, and in his contest with the city justice may be imperiled by the sympathy of the jury with the citizen. The courts cannot say that it is wrong for the legislature to impose upon the the citizen, as a condition of the liability of the city to him, that he, or some one of his fellows, shall give some notice of the danger which exists. It may be wise to enact that the government will protect the people if only some one of the people will give notice that protection is needed. The people are many, compared with the few officials, and it may not be unreasonable that the people should be accorded the privilege to summon the officials to duty. The judgment is affirmed, with costs. All concur.  