
    Cornelius Ivory, Resp’t, v. The Town of Deerpark, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Negligence — Commissioners of highways — Omission of official duty.
    In an action against a town for damages for injuries sustained by reason of negligence in not properly guarding a dangerous road: Rad, that in the-allegation in the complaint charging the commissioners of highways of the town with negligence, the term signified an omission of official duty.
    2. Judgment entered on verdict—When affirmed.
    The defendants having denied the possession of funds sufficient for the erection of the necessary protection fences, and it having been shown that there were funds sufficient for the purpose under their control, the location of the highway, the negligence of the commissioners and the contributory negligence of the plaintiff having all been put in issue and submitted to the jury, who rendered their verdict in plaintiff’s favor: Held, no error appearing of record; that the judgment entered on the verdict and order denying new trial should be affirmed.
    . Appeal from judgment entered on verdict rendered in favor of plaintiff at the Orange county circuit and, from an order denying a new trial on the judge’s minutes.
    
      Wm. F. O'Neil, T. J. & J. W. Lyon, for resp’t; C. E. Cuddebaek, Lewis E. Carr, for app’lt.
   Dykman, J.

In its application to this action the term negligence signifies an omission of official duty, and the allegation of the plaintiff is that the commissioners of the town of Deerpark have been guilty of negligence in omiting to erect a barrier on the side of the road at the place where he received his injuries, and leaving the same in an unsafe and dangerous condition.

He was driving a team of horses over one of the public highways of the town in a dark, rainy night on a descending grade and drove over an embankment. There was neither fence nor fixture of any kind at that place, and there was a curve in the road.

The cause was tried at the circuit and submitted to the jury upon principles of law which are well settled and recognized, and the verdict was awarded to the plaintiff.

The defendants denied the possession of funds sufficient for the erection of protection fences, but the proof showed money under their control with which they might have constructed the safeguards necessary for the protection of travelers.

The location of the highway was placed in dispute, and the negligence of the commissioners of highways was denied, and the contributory negligence of the plaintiff was insisted upon, and all these questions were the subject of testimony, and they were all submitted to the jury under proper instructions and found and decided in favor of the plaintiff. The record discloses no error, and the judgment and order denying a motion for a new trial should be affirmed with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  