Albrecht v. Queens County

Counties—Liabilities—Defective Bridges. Laws 1892, c. 686, §§ 2, 3 (County Law), declaring counties to be municipal corporations, does not change the rule that a county is not liable for negligence of the board of supervisors in failing to maintain bridges in a reasonably safe condition for public travel.

Appeal from special term, Kings county. Action by William Albrecht against the county of Queens and others for personal injuries. From a judgment entered on an order sustaining a demurrer to the complaint interposed by defendant Queens county, plaintiff appeals. The opinion of Mr. Justice BARTLETT on sustaining the demurrer is as follows: The only question argued upon the demurrer is whether a county, whose board of supervisors is charged by law with the duty of providing for the care, maintenance, and repair of a bridge, is liable for negligence in allowing the bridge to become out of repair. Under the decision of the court of appeals in the case of People v. Board of Sup’rs of Queens Go., 142 N. Y. 271, 36 N. E. 1062, it is quite clear that the county law imposed upon the board of supervisors of Queens county the duty of keeping in repair the bridge described in the complaint, upon which the plaintiff was injured. In behalf of the plaintiff, it is argued that a failure to fulfill this obligation renders the board of supervisors of each county liable, and consequently each county itself, inasmuch as the county law now expressly declares a county to be a municipal corporation, and provides that an action may be brought against a county in its own name to recover damages for any injury for which it is liable. Laws 1892, c. 686, §§ 2, 3. I am unable to see, however, how the position of a plaintiff in such a case as this has been aided by the enactment of the county law, or how his position Is substantially different from what it would have been prior to that statute. It will be observed that the county can be sued in its own name only to recover damages from an injury “for which it is liable”; so that we come back to the question whether it is liable for such an injury as that set out In the complaint. Does the mere fact that the duty of care and repair is cast upon the board of supervisors make either the board or the county liable for a negligent failure to fulfill the duty imposed? This question is answered in the negative by two cases cited in behalf of the demurring defendant. Ensign v. Supervisors, 25 Hun, 20; Alamango v. Supervisors, Id. 551. The first of these cases was an action growing out of injury to the plaintiff by reason of defects in a bridge over the Genesee river, which it was the duty of the county of Livingston to keep in repair. The general term of the Third department said that they had not been referred to a case, and were not aware of •one, in which an action of that kind had been maintained against a county -or town unless the right of action was expressly given by statute. The fact that there was no precedent for such a suit was declared to be strong evidence that no right of action existed. The court referred to the cases in which actions against municipal corporations may be maintained for negligence in respect to some ministerial duty imposed upon them by their charters, and pointed out that there is a distinction in this regard “between municipal corpo- rations created by charter, and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns which, like assembly and senatorial districts, are mere political divisions, organized for the convenient exercises of portions of the political power of the state.” I do not think that the declaration in the county law that the county is a municipal corporation has really effected any legal change in the character of counties, so as to make them resemble the chartered municipalities, to which reference is thus made in the Ensign Case. The counties, remain, just as before, “mere political divisions, organized for the convenient exercise of portions of the political power of the state.” In the Alamango Case the plaintiff attempted to make the supervisors of the county of Albany liable for the action of the authorities of the Albany Penitentiary in unlawfully putting him at work under a circular saw. The general term of the Third department held that there was no liability on the part of the supervisors, and sustained a demurrer to the complaint. “The duty of punishing criminals,” said Mr. Justice Rumsey, “is inherent in the sovereign power. It may be committed to agencies selected for that purpose; but such agencies, while engaged in that duty, stand so far in the place of the state, and exercise its political authority, and do not act in any private capacity. It is so in the laying out and maintaining of highways, the building of courthouses and schoolhouses, as well as in the building of jails and places of detention. In the performance of all such duties it is settled by the unanimous agreement of the courts that these agencies are not liable for neglect or misfeasance, unless the liability is especially imposed by statute.” It is conceded that there is no statute which makes either the county of Queens or its board of supervisors expressly liable for injuries due to neglect in not properly caring for and repairing bridges. In absence of any such enactment, and in view of the authorities cited, I think the demurrer is well pleaded, and the defendant is entitled to judgment. Judgment for the demurring defendant, with costs.