Opinion
Argued October 17, 1893
Decided October 24, 1893
D.J. Dean for appellant. Charles J. Patterson for respondent.
The plaintiff, having suffered personal injuries while a passenger in a car upon the New York and Brooklyn bridge, brought this action to recover damages against the municipalities named, as the owners of and controlling the bridge structure. The action was commenced in 1890, and in 1891 an act was passed (Chap. 128, Laws 1891), which provided that "Neither the mayor, etc., of New York, nor the city of Brooklyn, shall be liable hereafter for any matter * * * growing out of the New York and Brooklyn bridge * * * The trustees of the New York and Brooklyn bridge shall succeed to all liabilities of the two cities growing out of the bridge, and all claims and demands growing out of the bridge upon contract, and for negligence and for wrongs, which heretofore might be prosecuted against the two cities, or either of them, shall be prosecuted against the trustees of the New York and Brooklyn bridge, and they shall be liable therefor in their corporate capacity," etc., etc. When the cause came on for trial a motion was made to dismiss the complaint, upon the ground that under the said act of 1891 the trustees of the bridge had succeeded to all the liabilities of the defendants, and that they, and not the defendant cities, were liable to the plaintiff. That objection to the maintenance of this action presents the only question argued here.
That the two cities were properly made defendants in the action cannot be disputed; but it is, with great seriousness, insisted that, because of the language in the act of 1891, which I have quoted, the defendants were relieved from the liability under which they were to the plaintiff, and that such liability had been shifted to the bridge trustees. The argument is made that the provisions were absolute in their nature, with respect to the cessation of liability on the part of the cities, and that the legislature had thereby shifted the existing liability. The position of the defendants is exceedingly technical, and we are wholly unable to concede any force to the argument made. The plaintiff had a remedy against these defendants of which she could not be deprived. The undertaking was to carry the plaintiff safely, and for the results of the negligent performance of that undertaking the plaintiff had a remedy against the defendants, which she could and did enforce by the commencement of this action. We may say that the right of action was the plaintiff's property. To hold that her remedy was taken away, and thus her pending action was defeated by this legislation, would be giving a latitude of interference beyond any justification in authority.
The construction contended for is as unnecessary as it seems strained. In providing that the bridge trustees "shall succeed to all liabilities of the two cities," etc., the intention of the legislature is plain enough. The cities, through their ownership of the bridge, rested under every liability, which the obligation and duties of ownership might give rise to. The bridge trustees were substituted in the place of the cities, as the parties to be responsible thereafter for breaches of contract, or for torts, and they succeeded to whatever liabilities the cities might come under by virtue of their ownership. The succession of liability was prospective and, obviously, meant that they came into the place of the cities with respect to whatever causes of action might arise, and which, but for the act, would be enforcible against the cities.
We think the judgment should be affirmed, with costs, and that this is a case in which the penalty of ten per cent damages should properly be enforced, under section 3251 of the Code of Civil Procedure, subd. 5.
All concur.
Judgment affirmed.