Plaintiff appeals from a judgment of the Essex County Common Pleas Court dismissing her complaint on the ground that "it fails to show a cause of action in favor of the plaintiff against the defendant."
The complaint charges that the defendant municipality, having the duty to maintain the public highways in Montclair *Page 356 in good and safe condition, undertook to repair Woodlawn avenue by "seal-coating" the surface of that highway. This operation consisted in treating the surface with oil and covering same with crushed stone and dust. The complaint further alleges that the oil was laid down on the road "in such a quantity and in such a manner" that the pavement became slippery, with the result that it became a place of danger and amounted to a common nuisance as far as the public was concerned. The plaintiff was seriously injured by falling thereon. The second count of the complaint is a virtual repetition of the first.
The court below held that the complaint did not state a cause of action and relied chiefly on the case of Lydecker v.Freeholders of Passaic, 91 N.J.L. 622, but we do not think that this case is controlling. There, an excess amount of oil was spread on the roadway by a contractor. The municipality was not the active tort feasor and the complaint charged a mere omission of duty, i.e., failure to warn the public, c. Our view here is that the burden of the complaint before us charges affirmative negligence amounting to misfeasance. It is not an omission to perform a duty that is charged but rather active, affirmative wrongdoing. There is no right of action for injuries received by an individual because of a neglect to perform a duty,i.e., non-feasance. A municipality is not answerable for non-feasance on the part of its servants or agents unless such liability be created by positive statutory law, but a municipality is answerable to an individual who suffers a private wrong when such injury arises from the misfeasance or malfeasance of the municipality when that private wrong results from active wrongdoing on the part of the municipality, and even though it be in the performance of a governmental duty under circumstances and results amounting to common nuisance for which an indictment would lie. See Allas v. Rumson, 115 N.J.L. 593, and cases therein cited.
We are further of the opinion that facts are sufficiently pleaded which, if proved, would justify the finding that there was active wrongdoing. *Page 357
The defendant municipality urges in its brief that the plaintiff was manifestly guilty of contributory negligence or assumption of risk, but these are matters of defense and certainly do not appear on the face of the complaint which is all that is before us.
The judgment will be reversed, and costs will abide the event. *Page 358