The question presented involves the liability of a town for injuries sustained by a pedestrian in falling upon a sidewalk therein. The sidewalk was constructed by the defendant The Union Free School District No. 3 of the Town of West Seneca, Erie County, New York (hereinafter referred to as School District) and later became in such a state that it was defective. As a result there occurred the accident with which we are here concerned. Upon trial before a court and jury the husband and wife plaintiffs had verdicts against the defendant Town of West Seneca, Erie County, New York (hereinafter referred to as Town) but the jury found in favor of the defendant School District. Town appealed but no appeal was taken by the plaintiffs from the judgment in favor of School District. The Appellate Division reversed the plaintiffs' judgment against Town and dismissed the complaint. Under those circumstances the only question presented is as to the liability of Town.
The accident occurred in August, 1938, on Bellwood Avenue in Town. Bellwood Avenue is a public highway fifty feet wide. Within those fifty feet there was constructed a sidewalk along the school district property. The vehicle-way, which was asphalted, was about twenty feet wide. Between it and the sidewalk was what might be termed a shoulder of dirt or gravel. Then came the sidewalk and then another strip of dirt or gravel between the sidewalk and the fence enclosing the school district premises. The sidewalk in question was constructed in 1913 pursuant to an agreement by which the School Board of School District No. 3 of the Town of West Seneca engaged one Fisher to do the work. The same sidewalk was there at the time of the accident. It had been repaired once in 1927 when an addition to the school was built. In transporting material the contractor had wrecked a portion of the sidewalk and had then repaired it without cost to the School District. *Page 424
The question presented involves, therefore, the liability of atown, and not of an abutting owner in a town, for a defectivesidewalk.
We shall assume for the purpose of our discussion that the entire fifty feet within the lines of Bellwood Avenue, including the land on which the sidewalk was constructed by School District, was a town highway and while without a sidewalk was under the control, superintendence and regulation of the town authorities and that the town was responsible for a defect therein. Logically one would say that the same situation continued as to a sidewalk constructed within those fifty feet even though constructed without the consent of the town. Historically and by legislative action such is not the case in atown.
In Augustine v. Town of Brant, 249 N.Y. 198, 204-5, we said: "Towns and counties have been held to be merely divisions of the State organized for the convenient exercise of portions of the political power of the State (Lorillard v. Town ofMonroe, 11 N.Y. 392), and as such exempt from liability for the negligent exercise of such power. A distinction has been drawn for this reason between the liability of counties and towns and the liability of cities for highway negligence. * * * The distinction rests on the difference between the exercise by the town of political powers and the exercise by the city of powers assumed by or imposed upon it which are `more immediately performed in the interest of the corporation itself.' (Missano v. Mayor, etc., 160 N.Y. 123, 128.)"
The Town of West Seneca was formed in the year 1852 (L. 1852, chs. 98 and 412). Like all other towns it derived its existence and organization as well as its duties, obligations and power from the Legislature. (Holroyd v. Town of Indian Lake,180 N.Y. 318, 322.)
The first statute imposing highway liability upon towns was enacted by Laws of 1881, chapter 700. (See Highway Law, § 215.) The Legislature therein referred to "defective highways or bridges" and "defective roads or bridges." Sidewalks were not mentioned. There followed a series of acts to which we may refer as town-liability statutes, to wit (L. 1890, ch. 568, § 16; L. 1908, ch. 330, § 74; L. 1909, ch. 30, § 74; L. 1913, ch. 389; L. 1918, ch. 161, § 2). None of those statutes mentioned sidewalks. *Page 425
On October 25, 1934, the case of Gaynor v. Town ofHempstead (153 Misc. 321) was decided. In the opinion in that case the following language was used: "If the sidewalk which causes the injury is erected within the limits of the town highway by permission of the town or its superintendent, liability of the town for negligence of the superintendent in its maintenance follows. Liability follows equally when by omission to repair or compel the removal of a sidewalk constructed without their consent, but of the existence of which they have notice, a walk dangerous for travel is allowed to stand within the limits of the town highway. In such a case it would follow that a duty arises in the town superintendent of highways either to repair or to remove it, for whether it was built with or without their permission, once it has been built, is being used and they have notice of it, they become responsible for it.
"As we have seen, the town superintendent under the statute is required to make at least semi-annual inspection of town highways. If the sidewalk in question was erected upon a town highway without the consent of the superintendent or the town board, it must necessarily follow that in the course of time they were bound to have notice of its existence. It thereupon became their duty either to cause it to be removed as an obstruction or to keep it in a safe condition for travel. So far as this principle of law is concerned there can and should be no distinction whether the municipal corporation be a town or whether it be a city or a village.
* * * * * * *
"It follows, therefore, in the instant case that if it appears upon the trial that the sidewalk was constructed by the abutting owner without the consent of the town or its superintendent, the town may be absolved from liability if the injury caused by the sidewalk occurred before the town or its superintendent could be held to have had notice of its existence. At the same time it is equally true that the town may be held liable if the accident occurred after it or its superintendent knew of the existence of the sidewalk and of its condition, or should by the lapse of time have known of them, and nevertheless failed to take any action to cause the walk to be removed or repaired." (pp. 332-333.) *Page 426
At that time, the following language, originally enacted in the statute of 1890, remained substantially in the statute as subsequently amended: "Every town shall be liable for all damages to person or property, sustained by reason of any defect in itshighways or bridges, existing because of the neglect of any commissioner of highways of such town."
At the following session of the Legislature, which convened less than three months thereafter, there was enacted Laws of 1935, chapter 772, which amended said section 74 of chapter 30 of the Laws of 1909 (the Highway Law) so as to provide so far as here applicable, the italicized portion being new: "§ 74. LIABILITY OF TOWN FOR DEFECTIVE HIGHWAYS, Bridges andSidewalks. Every town shall be liable for all damages to persons or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any town superintendent of such town but it shall not be liable fordamages to persons or property sustained by reason of any defectin its sidewalks unless such sidewalks are constructed ormaintained by the town or the superintendent of highways of thetown pursuant to law * * *". That was reaffirmed and renumbered as section 215 of the Highway Law by Laws of 1936, chapter 63, and amended by Laws of 1936, chapter 266. The change by the latter statute was from the words "pursuant to law" to the words "pursuant to statute". By the 1935 statute the holding in theGaynor case was declared not to be the law in this State.
It is plaintiffs' contention that there was no statute which relieved Town from liability when the sidewalk was constructed in 1913 and that the statute of 1935 could not relieve it from such liability. We think that plaintiffs have misconstrued the liability imposed upon towns. Any such liability for defects in highways is a statutory one. (People ex rel. Van Keuren v.Town Auditors, 74 N.Y. 310; People ex rel. Loomis v. BoardTown Auditors, 75 N.Y. 316; Monk v. Town of New Utrecht,104 N.Y. 552; Flynn et al. v. Hurd, 118 N.Y. 19; Bowman v.Town of Chenango, 227 N.Y. 459.) In People ex rel. Van Keuren v. Town Auditors (supra), we said (p. 315): "Under our system, no corporate duty is imposed upon towns in respect to the care, superintendence, or regulation *Page 427 of highways within their limits. Commissioners of highways, have by the statute, the care and superintendence of highways, (1 Rev. St., 501, § 1), and, in the administration of the highway system, they, and the overseers of highways in subordination to them, are independent public officers, exercising public powers, and charged with public duties specially prescribed by law. * * * They are responsible, in a civil action, for any injury resulting from their neglect to repair a highway * * * whereby an individual sustains damage * * *."
Neither at common law nor by statute were towns under any legal liability to respond in damages until after the enactment of chapter 700 of the Laws of 1881. (Monk v. Town of NewUtrecht, 104 N.Y. 552, 557, supra.) It was there provided: "The several towns in this state shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways."
The mention of sidewalks in Laws of 1935, chapter 772, was not by any means an initial legislative reference. On the contrary, the Legislature had many times distinguished between highways and sidewalks in towns. When it intended to refer to a highway, it used that word. When it intended to refer to a board walk or its renewal in concrete or other material (Highway Law [L. 1909, ch. 30] § 47, subd. 2, § 62, now Highway Law [L. 1936, ch. 63] § 140, subd. 2, § 151) it used the word board walk. When it intended to define a board walk as a sidewalk (Highway Law [L. 1909, ch. 30] § 62, now Highway Law [L. 1936, ch. 63] § 151), it used both those words. The word highway was not used as including a sidewalk of whatever material constructed. Thus, section 61 of the former Highway Law (now Highway Law, § 150) provided that a town superintendent might authorize, under circumstances therein detailed, the owners of property adjoining the town highways "at their own expense, to * * * locate and construct sidewalks along the highways, in conformity with the topography thereof *Page 428
* * *"1 Under section 62 of the former Highway Law (now Highway Law, § 151) a town superintendent might "with the consent of the town board, maintain and repair existing sidewalks" and he might also be directed by the town board by resolution upon the petition of not "less than twenty-five taxpayers * * * to construct a sidewalk along a described portion of any highway of the town, * * *."2 Former Highway Law, section 47, subdivisions 1 and 2 (now Highway Law, § 140, subds. 1, 2), charged the town superintendent with the repair, "the care and superintendence of the highways and bridges and boardwalksor renewals thereof on highways less than two rods in width * * *" (33 feet) with exceptions not here material.3 There is also a series of statutes4 in which provision was made, at a period when apparently there was popular demand for cement sidewalks, for petitions, public hearings, estimates, plans, contracts and sidewalk taxes, which may have been designed to induce or compel property owners in towns to build or finance their own sidewalks.5 Finally there is a recent amendment, not here applicable, found in Highway Law, section 140, subdivision 18, by which it is now provided that a town superintendent shall "maintain all sidewalks in the townconstructed by the state adjacent to state highways and allsidewalks in the town constructed by the county adjacent to county roads * * *."6 (See, also, L. 1936, ch. 35.)
As further indicating the clear legislative intent and trend, we point out that in 1941 and 1942, subsequent to the accident here, by Laws of 1941, chapter 677, section 1 (repealing Highway Law, § 215, and adding a new section with same number) and Laws of 1942, chapter 300 (amending said § 215 as added), *Page 429 one injured may not sue a town even if it be shown that thesidewalk upon which he fell were in front of a town building, such as a town hall, and, therefore, constructed and maintained by the town, unless the claimant can show that written notice of the defect was given to the designated town official a sufficient time prior to his fall.
We need not quote here Highway Law, section 215, in full, as so repealed or added. Suffice it to say that it is now divided into numbered parts and that there is disclosed a clear Legislative distinction between the measure and method of proof required to establish liability for injuries sustained by reason of defects in highways and those sustained by reason of defects in sidewalks of towns. In the first of the numbered subdivisions injuries to person or property sustained by reason of a defect in a highway are considered. Subdivision two deals with injuries sustained by reason of a defect in a sidewalk. Subdivision three provides for notice of claim and commencement of action in either case. We note, however, that as to highways the claimant may have the benefit of constructive notice of defect by the town. As tosidewalks, a claimant may not avail himself of constructive notice nor may he avail himself of actual notice of defect served on the specified officer prior to injuries sustained, except as to sidewalks constructed or maintained by the town or town superintendent of highways pursuant to statute.
Despite the 1935 amendment to Highway Law, section 74(supra), the trial court denied Town's motions to dismiss the complaint at the end of the plaintiffs' case and at the end of the entire case, after reserving decision upon them until after the rendition of the jury's verdicts and followed the decision in the Gaynor case. The words of the charge to the jury were frequently the words of the Gaynor opinion. The trial court made clear its position by charging without exception by anyone that "the town of West Seneca did not construct or maintain this sidewalk". It may or may not be that the logic and reasoning in the Gaynor case are more consonant with justice than the rule adopted by the Legislature. The plaintiffs, in their brief, phrase it well in pointing out that the statutory rule means that "any trap or dangerous condition could remain indefinitely, and in the event of an accident, the town could look up the record and if the walk had been constructed by a *Page 430 property owner, they could point out this fact to the injured pedestrian and say, `We did not construct and we do not maintain'" or "`You have no remedy, because twenty-seven years ago the school district constructed a walk.'" It would seem that that is what the residents of towns wish. The action of the Legislature following swift upon the Gaynor decision so indicates. It may be that for a town to maintain all sidewalks now or hereafter constructed by private persons within town limits and to respond in damages for injuries suffered by reason of defects therein would impose too serious a financial burden upon town residents. That is for the Legislature to determine and it has spoken. "The courts are without power to substitute something else." (Thomann v. City of Rochester, 256 N.Y. 165,172.)
The rule seems to be to the contrary insofar as cities and villages are concerned. It has been stated that "A manifest difference in this respect, arising out of charter provisions, and the obvious requirements of the situation, exists between village and municipal corporations, and country towns, in respect to such obligations." (Monk v. Town of New Utrecht, 104 N.Y. 552,557, supra.) Thus in Saulsbury v. Village of Ithaca (94 N.Y. 27, 30) it was said: "It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is matter of discretion not to be regulated by the courts, yet when a sidewalk is built with or without its permission, it becomes responsible for its condition and bound so long as it exists to keep it in order."
Pursuant to statute (Town Law, § 2), towns are now municipal corporations. However, prior to the enactment of section 2 of chapter 569 of the Laws of 1890, towns were not called municipal corporations. The above cases Monk v. Town of NewUtrecht (supra), and Saulsbury v. Village of Ithaca (supra) use the words "municipal corporation" as referring to acity or a village. The rule placing greater liability upon cities and villages than upon towns is also found in the following cases: Bullock v. Mayor, etc., of City of New York (99 N.Y. 654); Nelson v. Village of Canisteo (100 N.Y. 89 -92); City of Rochester v. Campbell et al. (123 N.Y. 405);Stern v. International Ry. Co. (220 N.Y. 284).
The judgment should be affirmed, with costs.
1 The series of statutes distinguishing between highways and sidewalks in towns and resulting in Highway Law, section 150, began with Laws of 1860, ch. 61; see also, Laws of 1836, ch. 281.
2 The series of statutes resulting in Highway Law, section151, began with Laws of 1890, ch. 568, § 45.
3 The series of statutes resulting in Highway Law, section140, subdivisions 1 and 2, began with Laws of 1890, ch. 568, §§ 4, 20.
4 This series began with Laws of 1910, ch. 183.
5 See Laws of 1910, ch. 183; Town Law, sections 200, 200-a, and Town Law, section 198, subdivision 5, repealed by Laws of 1935, ch. 915, § 4.
6 Laws of 1937, ch. 833, § 3; Laws of 1939, ch. 266, § 1; Laws of 1941, ch. 736. *Page 431