#### Coonley *v.*City of Albany.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

L Municipal Corporations—Ordinance—Neglect to Enforce.

Albany city charter (Laws N. Y. 1883, c. 298, tit. 3, § 14, subd. 27) makes the common council commissioners of highways, with power to pass ordinances “in relation to the construction, repairs, care, and use of the markets, docks, wharves, piers, ” etc. Section 44 provides that nothing contained in the act shall be construed to render the city liable in damages for failure to pass or to enforce any ordinances pursuant to the provisions thereof. By Ordinances Albany, c. 42, § 15, it is provided that when any vessel is sunk in the Hudson river opposite the city, and within its jurisdiction, the street commissioners shall, after notice to the owner to remove it, and his failure to do so, take possession, remove, and sell the same, or so milch of its load as will pay the expense of the removal *Held*that, where the commissioners refused to remove a vessel sunk near plaintiff’s dock, he has no right of recovery against the city for the expense of removal, or for damages caused by the obstruction.

8. Same—Authority to Enact.

Title 3, § 14, empowers the city to enforce its ordinances by ordaining penalties for a violation not to exceed $100, but no power is conferred in the charter to confiscate private property under any circumstance, and therefore so much of the above ordinance as directs a sale of sunken boats or cargoes to pay the expense of removal is void.

8. Same—Construction of Statutes.

LawsN. Y. 1826, c. 185, § 15, relating to the city of Albany, declares that the common council are constituted commissioners of highways, “and shall and may pass ordinances” to remove any nuisances in any street or wharf, and “to prevent all obstructions in the river near or opposite to such wharves, docks, or slips, ” eta *Held,*that the statute does not impose the duty of keeping the river clear, and plaintiff cannot recover against the city by virtue thereof.

4. Navigable Waters—Highway.

The Hudson river is not a highway of the city of Albany.

*513Appeal from special term, Albany county.

Action by George W. Coonley for damages against the city of Albany. Appeal by plaintiff from a judgment sustaining a demurrer to his petition.

The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river, within the city of Albany, adapted to and valuable for the lading, unlading, and storage of merchandise from vessels; that on the 26th day of September, 1888, a canal-boat loaded with iron, while navigating the river, sunk at the said dock, and thereby obstructed its use, to plaintiff’s damage; that the defendant assumed the duty of keeping the river free from obstructions by section 10, c. 42, of the ordinances of the city of Albany, which reads as follows: “Whenever any vessel, loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf, or slip, or anywhere in the Hudson river opposite to the city of Albany, and within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor, or other person sailing such vessel to remove the same within twenty-four hours; and in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice in one of the newspapers printed in the city of Albany at least one week, directing the removal of such vessel as aforesaid; and, if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat, or flat, and to remove the same, and at public auction to sell such vessel, or as much of the loading thereof as will pay the expenses of such removal.” That on the 28th and 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice is annexed to the complaint; that on the 29th day of September, 1888, the mayor gave the street commissioner written directions to remove said boat; that said street commissioner took the preliminary steps, as provided by the city ordinance, to accomplish that result, and notified the owner to remove the boat, but finally, on or about the 26th day of October, 1888, declined to remove the same, or to do anything more towards that end; that thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid them for the work $314.79, besides having suffered other damage, to the amount of $1,000, by reason of said sunken boat not being removed by said street commissioner within a reasonable time. By reason of said facts plaintiff asks for judgment against the city of Albany for $1,414.79.

Laws 1826, c. 185, § 15, at pages 191, 192, relating to the city of Albany, among other things, provides as follows: “That the said common council are hereby constituted and declared commissioners of highways in and for the said city, and shall and may from time to time pass ordinances * * * to abate or remove any nuisances in any street or wharf, * * * to regulate, keep in repair, and alter the streets, highways, bridges, wharves, and slips, * * * to prevent all obstructions in the river near or opposite to such wharves, docks, or slips, * * * and generally to make all such rules, bylaws, and regulations for the good order and government of the said city, and to the commerce and trade thereof, as they may deem expedient, not repugnant to the constitution or laws of this state. ” The defendant demurred, upon the ground that the facts stated did not constitute a cause of action.

Argued before Mayham and Landon, JJ.

*Ward & Cameron,*for appellant. *B. Cady Herrick,*for respondent.

Landon, J.

The fact that the defendant has adopted an ordinance providing a method for the removal of vessels sunken at any of the docks of the city does not charge it with the duty of enforcing the ordinance, nor make it liable for its non-enforcement. Section 44 of title 3 of its charter (chapter 298, Laws 1883) reads as follows: “Nothing contained in this act shall be so *514construed as to render the city of Albany, or any of its officers, liable in damages, or otherwise, to any person or persons or corporation, for any omission to pass any ordinance, regulation, or resolution pursuant to the provisions hereof, or for a failure to enforce the same. ” That a city does not enforce its own ordinance does not render it liable. Its liability must arise from its failure of duty with respect to the subject-matter in question. *Stillwell*v. *Mayor,*17 Jones & S. 360, 96 N. Y. 649. The present charter of the city (section 14, subd. 27, tit. 3, c. 298, Laws 1883) makes the common council commissioners of highways for said city, with power to make ordinances “in relation to the construction, repairs, care, and use of the markets, docks, wharves, piers, slips, and squares of the city. ” Obstructions in the fiver itself are not here embraced. But the learned counsel for the appellant cites chapter 185, Laws 1826, § 15, which declares that the common council are constituted commissioners of highways, with power to pass ordinances “to prevent all obstructions in the river near or opposite to such wharves, docks, or slips, ” and alleges that it is still in force. Assuming this claim to be true, it will be observed that the act of 1826 does not require the city of Albany to keep the navigable waters within the city free from obstructions, but vests "it with the legislative power to enact an ordinance to that end. *Winpenny*v. *Philadelphia,*65 Pa. St. 135, is cited. There the statute required the city to keep the navigable waters within its limits free from obstruction, and’ the city was held liable for injuries consequent upon its neglect to observe the requifement. In *Hart v. Mayor,*9 Wend. 571, an ordinance like the one in question was held void, for the reason, among others, that the power given to the city to enforce its ordinances was limited to a penalty upon the violators not exceeding $25, whereas the ordinance then, like the ordinance now, provided for the removal and sale of the sunken boat; that is, its confiscation. The present charter confers no power to authorize or direct the sale of the boat, but does confer power upon the city to enforce its ordinances by ordaining penalties for each and every violation, not exceeding $100. Section 14, tit. 3.

An ordinance in excess of the legislative power of the common council is void. This ordinance, so far as it directs the sale of private property, 'is therefore void. It is urged that the sunken canal-boat was a nuisance, in that it obstructed navigation. No doubt it was, and, if there was no other practicable way to abate it except by its destruction, it might have been destroyed. But whoever undertook to act for the public, and to destroy it, must be prepared to show that he did it under the requirement of a great and overruling public necessity; *Hicks*v. *Dorn,*42 N. Y. 47. So far as the case shows, the necessity for its destruction was rather private than, public. It injured the business usually coming to the plaintiff’s dock. *People*v. *Corporation of Albany,*11 Wend. 539, is cited. It was there held that the city was indictable for not abating a public nuisance, injurious to the public health, caused by the accumulations in the Albany basin of noxious substances. The court cited the act of 1826, and held that the city had the power to cleanse the basin, and it was therefore its duty tó do it, if that act was necessary to protect the public health. But the court held that the city had no power to destroy a bulk-head, which was private property, but which by its situation caused the noxious materials to settle in the basin instead of being carried along by the current. The bulk-head was no nuisance, though the cause of one. In such a case it is obvious that, if the public authorities do not abate the nuisance, it will remain unabated. There is a plain, difference between the protection of the public health and the protection of the plaintiff’s business from accidental obstruction; it may be the duty of the government to provide for the one, and of the plaintiff to provide for the other. But, in the case of a public nuisance injurious to health, we do not think that an individual whose health becomes thereby impaired can maintain an action-against the city for the medical expenses he incurs and the loss of business *515he sustains in consequence of his impaired health, or if he should choose to abate the nuisance, for the expense which he incurs in so doing. If the city is liable, it is liable for the direct, and not the remote and contingent, consequences of its negligence. The city had no agency in sinking the boat. If liable at all, its liability would be limited to the damages naturally consequent upon its failure to remove it. The expenses incurred by the plaintiff would not be thus incurred. They would be incurred or not, at the plaintiff’s election. Damage to his business or impairment of the value of his property might naturally follow. We find nothing in any statute requiring the city to relieve the plaintiff from the burden of protecting his own business and property from loss occasioned by the obstruction and burden caused by the act dr omission of third parties. Beside, the Hudson river, within the city of Albany, is part of the highway for state, interstate, and foreign commerce, and is subject to regulations and improvement by congress. The state may exercise such control as does not interfere with the power vested in congress, and may require the city of Albany to provide such control with respect to the portion of the river within its limits. *Mobile Co.*v. *Kimball,*102 U. S. 691. So far as the state has authorized the city to aid its commerce by removal of obstructions in the river, the authority is in the nature of a privilege, which under its charter the city ought to exercise for the general corporate welfare, but not to relieve private owners of docks from proper private expense. The river is not a highway of the city. *Seaman*v. *Mayor,*80 N. Y. 239. Judgment affirmed, with costs.