Submitted June 17, 1872
Decided November 12, 1872
James F. Fitts for the appellant. S.W. Lockwood for the respondent.
Where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneons estimate of the public needs, no civil action is maintainable. ( Mills v. City of Brooklyn, 32 N.Y., 489.)
But when this discretion has been exercised, and the street, sewer or other improvement has been made, the duty to keep it in repair so as to prevent it from being dangerous to the public, is ministerial, and for a negligent omission to perform this duty, an action lies by the party injured. ( 36 N.Y., 54; 32 id., 489; 1 Den., 595; 9 N.Y., 169; 45 id., 129; 46 id., 194; 37 id., 568.)
The absence of the necessary funds and of the legal means of procuring them, will excuse the non-performance of this duty; but it seems that such absence of means should be shown as a defence. ( Hover v. Barkhoof, 44 N.Y., 113, 118; Adsit v. Brady, 4 Hill, 630, 634.)
The provision of the charter of the city of Lockport (Laws of 1865, p. 661), which empowers the common council of the city to direct the making, repairing, etc., of streets, alleys, sidewalks and crosswalks, and the provision (Laws of 1865, p. 670, as amended by Laws of 1867, p. 2071), constituting the common council commissioners of highways for said city, and authorizing them to regulate and repair the streets, alleys, highways, bridges, side and crosswalks, etc., in connection with the provisions at pages 2075 and 2076 of the Laws of 1867, and page 2007 of Laws of 1869, which authorize them to use, in defraying the expenses of repairing and keeping in order the highways, streets, etc., $2,500 of the money they are authorized to raise, and also the moneys collected by poll tax, with the power to assess inhabitants for highway labor, were, in our judgment, sufficient to cast upon the city the duty of keeping in a safe condition the crosswalk in question, which had been constructed under the direction of the city, and was laid in a highway. The provisions of the act of 1866, pages 1162, 1163, 1164, which authorize assessments for local improvements, including the repair of sidewalks and crosswalks, did not, in our opinion, relieve the city from that duty. The city is not restricted to the measures therein provided, in making necessary repairs to existing crosswalks, but has power to act directly under the other provisions of the charter. There is no finding or proof that the means placed at the disposal of the city for the purpose of highway repairs had been exhausted, nor did the referee place his judgment upon any such ground, but upon the sole ground that the power to repair was discretionary, and the city was not responsible for omitting to exercise it.
In this we think he erred. The power was imperative, and imposed upon the city the duty to exercise it, though words of command were not used. ( Hutson v. Mayor, etc., 9 N.Y., 163; Mayor, etc., v. Furze, 3 Hill, 612.) Whether discretionary or not, depends upon the nature of the power or duty, and, as has been shown, the duty of keeping highways, etc., in such repair as to be safe, is not discretionary or judicial in its nature, but ministerial.
The findings of the referee clearly show a negligent omission of this duty on the part of the city, by which the plaintiff was injured, without contributory negligence on her part, and also assess the amount of the damages she has sustained, but the referee dismissed the complaint on the ground before stated.
The order of the General Term granting a new trial must be affirmed, and as the plaintiff is consequently entitled to an absolute judgment under the stipulation on appeal, the judgment should be for the amount of damages found by the referee, with costs in this court and the court below.