On appeal from the Union County Circuit Court.
For the plaintiff-appellant, William V. Azzoli.
For the defendant-respondent, Salvador Diana.
The opinion of the court was delivered by
WELLS, J. This is an appeal from an order made and judgment entered in the Union County Circuit Court striking out the complaint and dismissing the cause of action at law on the ground that neither of the two counts of said complaint was sufficient in law to maintain an action against the defendant.
The first five paragraphs of both counts are identical and allege in substance that on July 23d, 1938, the plaintiff's intestate, Angelina Bengivenga, was a pedestrian lawfully walking on the sidewalk on the westerly side of Berkman Street in the vicinity of South Avenue, Plainfield, New Jersey; that on said date and for a long time prior thereto the defendant was in control of Berkman Street and South Avenue and all sewers, streams, sidewalks, conduits and drains within the lines of said public streets and the inlets and outlets thereof; that on said date the said Angelina Bengivenga was precipitated through said sidewalk, which paralleled Berkman Street, by reason of the opening up and collapse of said sidewalk which was caused by the prior acts (not specifying them) of defendant, and this precipitation through the sidewalk was the cause of Angelina Bengivenga's death.
Before discussing the sufficiency of the complaint, it might be well to state briefly a few of the rules of law pertaining to the subject-matter of the suit.
First: It is well settled that any one injured by the negligence of a municipality acting in a proprietary function may maintain an action against a municipality. Fay v. City of Trenton, 126 N.J.L. 52; Martin v. Asbury Park, 111 Id. 364.
Second: When a municipality is acting in a governmental function it must first be determined if the acts complained of constitute a private or public nuisance. If a private nuisance is properly charged and alleged in the complaint, a municipality can be held for negligence if it had prior notice of
the condition. Jersey City v. Kiernan, 50 N.J.L. 246. If, however, the acts complained of result in a private nuisance and active wrongdoing is also present, then prior notice of the condition is not required. Garrison v. Fort Lee, 92 Id. 566.
Third: "The courts of this state have said in conclusive form that the neglect of a municipal corporation to perform or its negligence in the performance of a public duty imposed on it by law, is a public wrong to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect." Waters v. Newark, 56 N.J.L. 361; affirmed, 57 Id. 456.
"But it is also a rule of law of equal importance that the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing chargeable to the corporation." Doran v. Asbury Park, 91 N.J.L. 651; Kehoe v. Rutherford, 74 Id. 659; 65 A. 1046.
The building of streets, sidewalks, sewers and drains is a proper governmental function and it is conceded that the municipal function in the course of which the alleged injury in the instant case arose was governmental and not proprietary. There can be no doubt that the acts complained of constitute a public nuisance i.e., one which might cause damage to any member of the public) and not a private nuisance (i. e., one which might cause special damage to a limited number of persons only). If we are right in the premises, then in order to maintain an action against the municipality, ...