By the Court, Jambs C. Smith, J.
The defendants are á municipal corporation created under the general act for the incorporation of villages, passed in 1847. (Laws of 1847, p. 533, ch. 426.) The plaintiff sues for personal injuries sustained, as he alleges, in consequence of an omission of duty on the part of the defendants to keep in repair a certain sidewalk within its corporate limits. In order to recover, he must show that the alleged duty was absolute and imperative. To decide this point, it is necessary to examine such provisions of the statute under which the defendants were incorporated as relate to the powers of the corporation, or its agents, in respect to the constructing and repairing of sidewalks.
The corporation has a board of trustees, five in number. (§ 25.) The trustees are charged with certain absolute [408]*408duties specified in the act, but the duty of making or repairing sidewalks is not among them. (§ 57.) The only specific duty absolutely imposed upon the trustees in respect to sidewalks, is to direct the manner of making and repairing sidewalks and crosswalks, and when there are no street commissioners, to superintend making and repairing the same. (Subd. 22.)
There are also certain enumerated powers vested in the trustees, to be exercised by them in their discretion, (§ 58,) but the power in question is not among them.
On a further examination of the statute it will be seen that the trustees have no absolute power to cause sidewalks to be made or repaired, but that their authority respecting that subject is wholly dependent on the action of the electors of the village.
The act provides that the duly qualified voters of the village, at any meeting, may, by resolution, direct the trustees to cause sidewalks to be made or repaired on any public road therein, or on any part of such road therein, specified in the resolution. (§ 35.) The expense of making or repairing such sidewalk shall be a lien on the lot which it adjoins in front; and if the owner be a resident, the trustees shall give him notice of the manner in which such sidewalk is required by them to be made or repaired, and of the time, not less than sixty days, within which it may be so made or repaired by him at his own expense, under the superintendence of the trustees or of the street commissioners. (§ 46.) If the owner shall not make or repair such sidewalk, &c. or if he be not a resident of the village, the trustees shall cause the same to be made or repaired, and the expenses thereof shall be a tax against him and a lien upon the lot, and the trustees shall issue their warrant for the collection thereof. (§ 47.) If the warrant shall be returned uncollected, the trustees may lease the real- estate on which the tax is assessed, or the expenses are a lien, for the purpose of raising the amount, [409]*409(§§ 50-54,) and by an act passed in 1864, they may se]l such real estate for the like purpose. (Laws of 1864, p. 1295, ch. 559, §§ 1-8.)
But the duty of causing such sidewalk to be made or repaired in case of the neglect or non-residence of the owner, with which the trustees are charged by the provisions above referred to, is not fixed and absolute, nor does it become so, until the trustees are supplied with funds for the purpose. They have no power, within themselves, to raise such funds, and in that respect also they are wholly dependent on the action of the electors. It is expressly provided by the act that the village shall have no power to borrow money, nor shall it be liable to pay money borrowed on its account, or advanced in its behalf, by its officers or by any other person, (§ 43,) and no officer of the village shall have power to assent to incurring any debt or liability on the part of the village contrary to the pz’ovisions of the act. (§ 44.) But it is also provided that at any meeting of the electors to elect village officers, or at any other meeting duly notified, the qualified voters may, by resolution, direct the trustees to cause to be raised by a genei’al tax upon the taxable property of the village, taxes for certain specified puz’poses, and no other, one of which is, “ for the necessary advances for making and repairing sidewalks izi cases where those required to make or repair them shall neglect or refuse to do so.” (§ 28, subd. 7.)
Even the power's of the electors, in respect to the subjects above referred to, are expressly limited by the terms of the act. Ho resolution shall be adopted requiring the trustees to cause a sidewalk to be made or repaired, unless the. notice of the meeting required by law to be given by the ti’ustees shall specify that such a resolution will be proposed for adoption thereat. (§ 45.) And. no ,/j;ax shall be voted, uhless the notice of the me^^^MlMp'^ city the amount and objects of such tax,'.^d$^he"^ecíSc 'S sum required or proposed to be raised forj|ac|||)bjll£b, an^, ^ [410]*410shall state that such meeting will be called upon to vote in respect to raising the sum so specified. (§ 29, see also §§ 30, 31.)
Thus it appears from these several provisions of the act, that the corporation has no power to cause sidewalks to be made or constructed, except in the mode, and by-means of the agencies therein provided; that the trustees ■ have no authority to construct or repair sidewalks uhtil the electors by resolution, duly adopted, direct them to cause the work to be done, and also direct them to cause money to be raised by tax for the necessary advances for stich work; that the powers of the electors over the subject are limited, and that within the limits prescribed, their powers are wholly discretionary.
Until the electors have directed the work to be done and the money to be raised, and the money has been' raised, there is no fixed and absolute duty on the part of the trustees to cause the work to be done.
In short, it is not the intent of the general statute referred to, authorizing the' incorporation of villages, to confer upon the corporations formed under it, or upon their officers, an absolute power to make or cause to be made and kept in repair sidewalks along their streets, thus involving taxation to an unknown extent, but the subject is referred to the discretion of the electors in their collective capacity, who by their action may impose upon the trustees the duty of causing any particular sidewalk to be made or repaired. This policy of the statute' is obviously intended to protect the rights of individual lot owners against an undue wielding of corporate or official power, and it should be carefully observed. If in consequence of its operation useful repairs or constructions are sometimes delayed or prevented, whereby an individual sustains peculiar damage, he suffers no legal injury, and the law gives him no remedy.
This view of the statute, and of the powers and duties [411]*411resulting from it, distinguishes the present case from that of Conrad v. The Trustees of the Village of Ithaca, (16 N. Y. Rep. 158,) and others of a like nature to which we are referred by the plaintiff’s counsel. Those cases rest upon the principle that the grant by the government to a municipality, of a portion of its sovereign power, is to be deemed a sufficient consideration for an implied contract on the part of the corporation to perform the duties which the charter imposes, and the contract made with the sovereign power enures to the benefit of every individual interested in its performance.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Jambs C. Smith, J.
The defendants are á municipal corporation created under the general act for the incorporation of villages, passed in 1847. (Laws of 1847, p. 533, ch. 426.) The plaintiff sues for personal injuries sustained, as he alleges, in consequence of an omission of duty on the part of the defendants to keep in repair a certain sidewalk within its corporate limits. In order to recover, he must show that the alleged duty was absolute and imperative. To decide this point, it is necessary to examine such provisions of the statute under which the defendants were incorporated as relate to the powers of the corporation, or its agents, in respect to the constructing and repairing of sidewalks.
The corporation has a board of trustees, five in number. (§ 25.) The trustees are charged with certain absolute [408]*408duties specified in the act, but the duty of making or repairing sidewalks is not among them. (§ 57.) The only specific duty absolutely imposed upon the trustees in respect to sidewalks, is to direct the manner of making and repairing sidewalks and crosswalks, and when there are no street commissioners, to superintend making and repairing the same. (Subd. 22.)
There are also certain enumerated powers vested in the trustees, to be exercised by them in their discretion, (§ 58,) but the power in question is not among them.
On a further examination of the statute it will be seen that the trustees have no absolute power to cause sidewalks to be made or repaired, but that their authority respecting that subject is wholly dependent on the action of the electors of the village.
The act provides that the duly qualified voters of the village, at any meeting, may, by resolution, direct the trustees to cause sidewalks to be made or repaired on any public road therein, or on any part of such road therein, specified in the resolution. (§ 35.) The expense of making or repairing such sidewalk shall be a lien on the lot which it adjoins in front; and if the owner be a resident, the trustees shall give him notice of the manner in which such sidewalk is required by them to be made or repaired, and of the time, not less than sixty days, within which it may be so made or repaired by him at his own expense, under the superintendence of the trustees or of the street commissioners. (§ 46.) If the owner shall not make or repair such sidewalk, &c. or if he be not a resident of the village, the trustees shall cause the same to be made or repaired, and the expenses thereof shall be a tax against him and a lien upon the lot, and the trustees shall issue their warrant for the collection thereof. (§ 47.) If the warrant shall be returned uncollected, the trustees may lease the real- estate on which the tax is assessed, or the expenses are a lien, for the purpose of raising the amount, [409]*409(§§ 50-54,) and by an act passed in 1864, they may se]l such real estate for the like purpose. (Laws of 1864, p. 1295, ch. 559, §§ 1-8.)
But the duty of causing such sidewalk to be made or repaired in case of the neglect or non-residence of the owner, with which the trustees are charged by the provisions above referred to, is not fixed and absolute, nor does it become so, until the trustees are supplied with funds for the purpose. They have no power, within themselves, to raise such funds, and in that respect also they are wholly dependent on the action of the electors. It is expressly provided by the act that the village shall have no power to borrow money, nor shall it be liable to pay money borrowed on its account, or advanced in its behalf, by its officers or by any other person, (§ 43,) and no officer of the village shall have power to assent to incurring any debt or liability on the part of the village contrary to the pz’ovisions of the act. (§ 44.) But it is also provided that at any meeting of the electors to elect village officers, or at any other meeting duly notified, the qualified voters may, by resolution, direct the trustees to cause to be raised by a genei’al tax upon the taxable property of the village, taxes for certain specified puz’poses, and no other, one of which is, “ for the necessary advances for making and repairing sidewalks izi cases where those required to make or repair them shall neglect or refuse to do so.” (§ 28, subd. 7.)
Even the power's of the electors, in respect to the subjects above referred to, are expressly limited by the terms of the act. Ho resolution shall be adopted requiring the trustees to cause a sidewalk to be made or repaired, unless the. notice of the meeting required by law to be given by the ti’ustees shall specify that such a resolution will be proposed for adoption thereat. (§ 45.) And. no ,/j;ax shall be voted, uhless the notice of the me^^^MlMp'^ city the amount and objects of such tax,'.^d$^he"^ecíSc 'S sum required or proposed to be raised forj|ac|||)bjll£b, an^, ^ [410]*410shall state that such meeting will be called upon to vote in respect to raising the sum so specified. (§ 29, see also §§ 30, 31.)
Thus it appears from these several provisions of the act, that the corporation has no power to cause sidewalks to be made or constructed, except in the mode, and by-means of the agencies therein provided; that the trustees ■ have no authority to construct or repair sidewalks uhtil the electors by resolution, duly adopted, direct them to cause the work to be done, and also direct them to cause money to be raised by tax for the necessary advances for stich work; that the powers of the electors over the subject are limited, and that within the limits prescribed, their powers are wholly discretionary.
Until the electors have directed the work to be done and the money to be raised, and the money has been' raised, there is no fixed and absolute duty on the part of the trustees to cause the work to be done.
In short, it is not the intent of the general statute referred to, authorizing the' incorporation of villages, to confer upon the corporations formed under it, or upon their officers, an absolute power to make or cause to be made and kept in repair sidewalks along their streets, thus involving taxation to an unknown extent, but the subject is referred to the discretion of the electors in their collective capacity, who by their action may impose upon the trustees the duty of causing any particular sidewalk to be made or repaired. This policy of the statute' is obviously intended to protect the rights of individual lot owners against an undue wielding of corporate or official power, and it should be carefully observed. If in consequence of its operation useful repairs or constructions are sometimes delayed or prevented, whereby an individual sustains peculiar damage, he suffers no legal injury, and the law gives him no remedy.
This view of the statute, and of the powers and duties [411]*411resulting from it, distinguishes the present case from that of Conrad v. The Trustees of the Village of Ithaca, (16 N. Y. Rep. 158,) and others of a like nature to which we are referred by the plaintiff’s counsel. Those cases rest upon the principle that the grant by the government to a municipality, of a portion of its sovereign power, is to be deemed a sufficient consideration for an implied contract on the part of the corporation to perform the duties which the charter imposes, and the contract made with the sovereign power enures to the benefit of every individual interested in its performance. • The peculiar provisions of the - statute, already referred to, prescribing the only means by which the corporate power to make or repair sidewalks can be exercised, and limiting the authority of the trustees and of the electors themselves, on that subject, leave no room to imply a contract by the corporation to make sidewalks or keep them in repair, otherwise than as the statute provides.
If the views above expressed are correct, the plaintiff’s action cannot be supported. The injury complained of resulted from the decayed condition of a sidewalk, which the defendants caused to be constructed several years before the injury, in front of a lot owned by a non-resident. It does not appear, that prior to the injury any resolution had been adopted at a meeting of the electors, directing the trustees to cause that particular sidewalk to be repaired, or providing that money be raised by tax for the necessary advances therefor.
The plaintiff proved that a resolution was adopted by the electors of the village, on the 2d March, 1858, authorizing the trustees to cause sidewalks to be built and kept in repair by the owners of lots, “on each and every' street of the village, when, in their judgment, the good and welfare of the inhabitants shall require it, without any further vote of the people.” This resolution does not [412]*412aid the plaintiff’s case. In the first place, it is, to say the least, of questionable authority, as it does not specify any sidewalk to be constructed or repaired. Section 45 of the general act requires that every resolution of the electors, directing the trustees to cause. sidewalks to be made or repaired on any public road, or any part of such road, shall specify such road or part of road. But, in the next place, if the resolution is valid, it is not mandatory in respect to any particular sidewalk, but confers a general and purely discretionary power as to what walks, if any, shall be made or repaired, and as to the time when the work shall be done.
The plaintiff’s counsel refers to certain provisions of chapter 559 of the laws of 1865, amending the general statute, but they do not affect this case. Section 18 of that act, which gives the trustees power to raise, by tax, funds for certain purposes therein mentioned, including' advances required for sidewalks, expressly directs, that said “ funds shall be raised in the same manner in which other taxes are raised in said village.” This seems to require the preliminary resolution of the electors, provided for by the general act. But, however that may be, (a point -which it is unnecessary to decide,) the section, so far as it relates to a fund for sidewalks, refers to such sidewalks only as are directed to be made or repaired, pursuant to the provisions of section 15 of the same act, to wit, after a vote by ballot, for the purpose, by a majority of the taxable voters of the village who shall own real estate therein, (provided such vote shall represent two thirds of the real estate of said village, held by resident owners.) There is no evidence of such a vote in the present case.
The act of 1847 provides that it shall be the duty of the trustees to carry into effect every resolution adopted at any meeting of the electors of such village, legally con[413]*413vened, which such meeting shall have authority to adopt. (§ 57, subd. 10.) In view of this provision, I see no reason to doubt that if the electors had, by resolution duly adopted, directed the trustees to repair the sidewalk in question, and directed, also, the raising of funds for that purpose by tax, and such funds had been raised, the duty of the trustees to repair would have become absolute and fixed, and, for their neglect of such duty, the corporation would have been liable to an individual sustaining peculiar damage thereby. (17 John. 451. 29 N. Y. Rep. 297. 34 id. 389.) But, as we have seen, that is not the case before us.
[Monroe General Term,
March 2, 1868.
E. D. Smith, Johnson and J. C. Smith, Justices.]
The plaintiff’s counsel argues that the defendants are liable, on the ground that, having constructed the sidewalk originally, they are bound to keep it in repair. But the argument overlooks entirely the provisions of the statute already adverted to, which relate to repairs as well as to original constructions. There is no imperative obligation to repair without funds for that purpose. In the case of Peck v. Batavia, (32 Barb. 634,) the injury resulted from the fact that a sidewalk, originally constructed by the village corporation, was out of repair, yet it was held that the corporation was not liable.
The defendants are entitled to judgment on the nonsuit ordered.
Judgment for the defendants.