Art. 12. Municipal and Quasi-Municipal Corporations. unnecessary before the commencement of an action to recover it. Etna Ins. Co. v. Mayor, 153 N. Y. 331 (339). A mere protest against payment of the money upon a tax is not sufficient to authorize its recovery. Union Pacific R. R. Co. Silliman v. Wing, 7 Hill, v. Dodge County Comrs., 98 U. S. 541; Judge Dillon (§ 943) says that "The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power, possessed, or believed to be possessed, by the party receiving the payment from the person or property of another, from which the latter has no other means of immediate relief except by making payment. § 9. Liability for use of municipal property.— Upon the ground that owners of property are liable for its improper use and condition, municipal corporations have been held liable for damages caused by defective condition of property, which is held by them in the private character of owner or lessee, to the same extent, and in the same manner, as private corporations and individuals. Tiedman, § 336a, citing Hill v. Boston, 122 Mass. 344 (359). The following New York cases are cited by Tiedman as bearing upon this proposition: Bailey v. New York, 3 Hill, 531 (539); Radway v. Briggs, 37 N. Y. 256; Kennedy v. Mayor, 73 N. Y. 365. See Seaman v. Mayor, 80 N. Y. 239. Radway v. Briggs, 37 N. Y. 256, holds that the right to collect wharfage by a State corporation carries with it the correlative duty of keeping wharves in repair; and that where the defendant had transferred that right to another party the lessee was liable in damages. In McAvoy v. Mayor, 54 How. Pr. 247, Judge Barrett holds that the city of New York is responsible for damages caused by negligence of the Croton aqueduct department, or department of public works, in laying and keeping in repair the water pipes in the streets of said city upon the ground that it is a corporate and not a political or governmental duty. Distinguishing it from Maxmilian v. Mayor, 62 N. Y. 160. A municipal corporation in its private capacity of owner of lands and houses is to be regarded in the same light as an individual and dealt with accordingly; so held with regard to dam on Croton sewer forming part of water works. Bailey v. The Mayor, 3 Hill, 531. Art. 12. Municipal and Quasi-Municipal Corporations. Where a city owns property used other than for governmental purposes, or receives benefit from such property, it is liable as an individual. It seems that a city is charged with the duty of keeping a dock owned by it in a safe condition, and if in using it in a customary way party is injured without fault of his, city is liable. Kennedy v. Mayor, 73 N. Y. 365. § 10. Liability for consequential injury to property. When, in the exercise of authority conferred upon them by the legislature, municipal corporations perform acts, as a result of which some indirect or consequential injury is sustained by an individual, the latter has no right of action for such injury. Such injuries. are damnum absque injuria. But when a corporation takes the property of an individual it must pay for it. Hoffmeyer v. City of Brooklyn, 162 N. Y. 584, citing Radcliff's Exrs. v. Mayor, 4 N. Y. 205; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 47; Atwater v. Trustees of the Village of Canandaigua, 124 N. Y. 602; Noonan v. City of Albany, 79 N. Y. 476; N. Y. C. & H. R. R. R. Co. v. City of Rochester, 127 N. Y. 591, and Seifert v. City of Brooklyn, 101 N. Y. 143, distinguishing St. Peter v. Demson, 58 N. Y. 416. These authorities with the Hoffmeyer case, supra, are again cited in Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270, distinguishing Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202, holding, opinion Martin, J., that it is well settled that acts authorized by an express enactment of the legislature, and performed in good faith upon work of a public character, do not render the person performing them liable for special damages, unless there is an absence of due care or skill in the execution of the work; that an act done under the express authority of law for a public purpose, if done in the proper manner, and the property of an individual is not taken or encroached upon, will not subject the person doing it for its consequences, whatever they may be, unless the law provides compensation for injuries of that character. See Muhlker v. N. Y. & H. R. R. Co., 173 N. Y. 549. In Radcliff's Exrs. v. Mayor, 4 N. Y. 195, it is held that where a municipal corporation, under authority of its charter, grades and levels a street, an action will not lie by an adjoining owner whose lands are not actually taken, for special damages to his premises, where there is no want of care or skill in the exe Art. 12. Municipal and Quasi-Municipal Corporations. cution of the work, and no provision in the charter for the payment of damages of that kind. A municipal corporation acting under its powers conferred by the legislature to make, repair, grade, and improve streets, may grade or alter the grade of streets already established, without liability for damages, where there is no actual entry on private property, and the work is confined to a street, provided reasonable care is employed in doing the work, in the absence of a statute giving compensation in such cases. Urquhart v. City of Ogdensburgh, 91 N. Y. 67; Watson v. City of Kingston, 114 N. Y. 88. § 11. Liability for property destroyed by mob.- By the provisions of the General Municipal Law (chap. 17, General Laws, 21), a city or county is made liable to a person whose property is destroyed or injured by a mob or riot. Chapter 428, Laws of 1855, is repealed by that chapter. At common law municipal corporations were not subjected to any responsibility for the safety of private property within their limits. Williams on Municipal Liability for Torts, 290; Tiedman, 334; Louisiana, etc. v. New Orleans, 109 U. S. 285. The principle of legislation upon this subject is said to be derived from England, and that as early as 1285, Parliament, by statute, provided a remedy against the hundred, county, etc., in which a robbery should take place for the damages caused thereby. The legislation upon this subject eventuated in the Riot Act of George I, one of the sections of which provided that in case a church or dwelling-house should be destroyed by mob, the inhabitants of the hundred, in which it should be situated, should be liable for its value. The thing to be accomplished is not merely compensation for loss, but prevention of loss with compulsory compensation as the incentive. Underhill v. Manchester, 45 N. H. 225. In Darlington v. The Mayor, 31 N. Y. 164, it was held that an act for compensating parties whose property may be destroyed in consequence of mobs and riots (Laws of 1855, chap. 428), was constitutional. Orr v. City of Brooklyn, 36 N. Y. 661. Since an action of this character is brought under special stat ute and maintainable solely by its authority, the limitation as to time within which the suit must be brought is so incorporated with the remedy as to make it an integral part of it, a condition Art. 12. Municipal and Quasi-Municipal Corporations. precedent to the maintenance of the action. Hill v. Supervisors of Rensselaer County, 119 N. Y. 340. § 12. Not liable for damages from works of construction.A municipal corporation does not insure the citizen against damage from works of its construction. Its obligation and duty in such respect is measured by the exercise of reasonable care and diligence. Liability can only be predicated upon its neglect and misconduct. Jenney v. City of Brooklyn, 120 N. Y. 164. In an action to recover damages for injuries to the vault of a building, constructed under a sidewalk, alleged to have been caused by the negligence of defendant in blasting while engaged in excavating a trench in the street in front of the building, under a municipal contract providing that the blasting should be conducted in conformity with the city ordinances, where there is no evidence showing or tending to show negligence in the performance of the work, and for aught that appears the injuries may have been a natural result thereof, influenced possibly in addition by some weakness in the construction of the building, a nonsuit is properly granted. Holland House Co. v. Baird, 169 N. Y. 136. In Bates v. Holbrook, 171 N. Y. 460, the court discusses the liability of contractors for damages in carrying on a work in the streets of the city authorized by statute. At page 468 it is said that the law is settled in this State that acts which are authorized by the express enactments of the legislature, and performed in good faith upon work of a public character, do not render the persons performing them liable for consequential damages, unless there is an absence of due care and skill in the execution of the work. It is held that the plaintiff in the case then at bar must suffer the annoyance and injury from such acts as were reasonably necessary to the execution of the work; but that the maintaining of permanent structures for the purpose of carrying on the work at other points placed an unjust and undue burden upon him. That while damages which are inflicted upon abutting property-owners in the performance of public work are reasonably and properly regarded as damnum absque injuria, the exemption rests upon the necessity of the situation, and the fact that the defendants were engaged in public work was, under the circumstances, no defense to the charge that the structures in front of plaintiff's Art. 13. Charitable Corporations. property were a nuisance. O'Brien, J., filed a vigorous dissenting opinion in this case, in which Parker, Ch. J., concurred. ARTICLE XIII. CHARITABLE CORPORATIONS. The question of liability of charitable corporations for negligence is considered in Glavin v. Rhode Island Hospital, 12 R. I. 411 (1879), and Hearns v. Waterbury Hospital, 66 Conn. 98 (1895), cases reprinted; Erwin's Cases on Torts, 107, 129. The Connecticut case cites, among others, Harris v. Woman's Hospital, 27 Abb. N. C. 37, 14 N. Y. Supp. 881, stating, however, that the case was decided on questions of fact, and that no actual negligence or want of care was found on the part of the hospital authorities, the surgeons, or the nurse. In that case, a former decision holding that a charity patient has the same right of action for malpractice as one who pays for attendance is approved; and Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675, is followed by a note as to the responsibility of physicians and surgeons for skill and care in charitable or gratuitous service. A charitable corporation organized for the purpose of giving gratuitous surgical treatment to indigent persons is not liable for injuries resulting from performing an operation on the patient, where the corporation has exercised due care in the selection of its skilled employees and surgeons. Van Tassel v. Manhattan Eye and Ear Hospital, 15 N. Y. Supp. 620. Note to this case cites a number of authorities, and the case itself is cited to the main proposition in Joel v. Woman's Hospital, 89 Hun, 73, 35 N. Y. Supp. 37. In Ward v. St. Vincent's Hospital, 39 App. Div. 624, 57 N. Y. Supp. 784, it was held that a contract made by a corporation maintaining a charity hospital, to receive a patient into its hospital and for an agreed compensation furnish her with a skillful, trained, and competent nurse, was within the powers of the hospital and that it was liable for negligence, granting a new trial to plaintiff. 65 App. Div. 64, 72 N. Y. Supp. 587, reports the case on appeal from the verdict of a jury in favor of plaintiff. The same rule seems to have been adhered to, and the case sent back for a new trial upon exception to request to charge. 78 App. |