
    The People vs. Adsit and others, commissioners of highways, &c.
    An indictment against commissioners of highways for not repairing a bridge is defective, unless it aver that the defendants had funds or other means to defray the expense of the repairs.
    Error to the Columbia .general sessions, where the defendants were indicted for neglect of duty in not repairing, a bridge. The indictment charged, among other things, that a certain bridge in the town of which the defendants were commissioners of highways was out of repair, and that the defendants ought to have repaired it, &c. but that they wilfully and unlawfully neglected to do so. The indictment'contained no averment that the defendants had funds or other means to defray the expense of repairing the bridge. The defendants demurred, and the court below gave judgment for them. The people brought error. %
    
      J. Sutherland, (district attorney,) for the plaintifis in error.
    
      H. Hogeboom, for the defendants in error.
   By the Court,

Cowen, J.

We are of opinion that the existence of funds or other specific means provided by statute, is a condition precedent to the obligation of commissioners of highways to repair bridges. It follows, that the existence of such funds or other means should have been averred in the indictment as a substantive fact. (Bartlett v. Crozier, 17 John. 439. People v. Com. of Highways of Hudson, 7 Wend. 474.)

Judgment affirmed.  