
    THOMAS P. DEYOE, Respondent, v. THE VILLAGE OF SARATOGA SPRINGS, Appellant.
    
      Chapter 763, Lams of 1873 — Commissioners of water-works appointed under—village responsible for acts of—Streets—dmties of village as to repairs of.
    
    The plaintiff was injured by driving into a ditch in one of defendant’s streets, made by the commissioners of water-works, for the purpose of making repairs to pipes, etc., and which had been left unguarded. Held, that the defendant was liable; that the commissioners were subordinate to the defendant, to which the water-works belong, and that the commissioners are merely the agents of the defendant, in their construction and maintenance.
    
      Semble, that even if this were not so, the defendant would be liable, on the ground that it was its express and exclusive duty to keep in repair the streets of the village, and that as the superintendent of the water commissioners, under whose direction the work was done, was also the superintendent of streets, his knowledge was the knowledge of defendant.
    Appeal from a judgment, entered upon the verdict of a jury, after a motion for a new trial made by the defendant upon the minutes of the judge presiding at the trial.
    Plaintiff, with his horses and carriage, drove into an open ditch in one of defendant’s streets, whereby he suffered damages. The ditch had been opened by the commissioners of water-works, for the purpose of making repairs to pipes, etc., and had been left, unguarded by them during the night, whereby plaintiff was injured. The commissioners of water-works were appointed by the legislature, and to such commissioners is given, by the act, the management and control thereof. The defendant’s superintendent had the supervision of the streets and highways of the village, subject to the control of the trustees, who possess the usual powers and duties as to the streets. Such superintendent was also foreman or superintendent of the commissioners of water-works, and, as such, caused this excavation in the street to be made.
    At the close of the plaintiff’s evidence, defendant moved for a nonsuit, upon the ground, substantially, that if any cause of action had been proved, it was against the commissioners of water-works and not against the village of Saratoga Springs. The motion was denied, and defendant excepted.
    
      
      P. H. Cowen, for the appellant,
    cited Hutson v. Mayor, etc. (9 N. Y., 163); Davenport v. Ruckman (37 id., 568); Wendell v. Mayor, etc. (39 Barb., 329); Bailey v. Mayor, etc. (2 Denio, 433-442); Williams v. Village of Dunkirk (3 Lans., 44); Bank of Commonwealth v. The Mayor (43 N. Y., 188).
    Jo/m Foley, for the respondent,
    cited Bailey v. The Mayor, etc., (3 Hill, 531); Rochester White Lead Co. v. of Rochester (3 N. Y., 463); Starrs v. of Utica (3 Smith, 104); Barton v. of Syracuse (37 Barb., 292); Hyatt v. Trustees of Rondout (44 Barb., 385); Diveny v. City of Elmira (51 N.Y., 506); Wendell v. Troy (4 Keyes, 272); Davenport v. Ruckman (37 N. Y., 568).
    
      
       Laws of 1872, vol. 2, p. 1819.
    
   Boardman, J.:

Before the act of 1872, the water-works of Saratoga Spa had been substantially completed, except extensions. By that act, five water commissioners were appointed, to whom were given the management and control of the water-works and their appurtenances. The defendant’s trustees appointed, or were to appoint, their successors. The commissioners have power to appoint a superintendent. The trustees are required to raise money by tax, in accordance with the commissioners’ estimate, and pay the same to the commissioners. The commissioners are required to make a report of their proceedings to the trustees when required. By a vote of two-thirds of the trustees, an action may be begun against the commissioners for any misfeasance, malfeasance, or default in the discharge of their duties. The defendant’s trustees are further required to issue $50,000 of bonds, for the extension and completion of the water-works and paying indebtedness therefor, to be delivered to said commissioners. By the acts of 1872 and the acts of 1868, chapter 557, 1869 chapter 264, and 1870, chapter 31, it is apparent that the water-works belong to, and are the property of, the defendant, and that the commissioners are merely the agents of the defendant in their construction and maintenance. The commissioners are responsible to the village corporation for the proper discharge of their duty. The commissioners and village are not two separate and independent bodies, but the former is subordinate to the latter. The commissioners owe no duty to individuals, in respect to the highways of said village, and, as a consequence, are not responsible to individuals for any neglect of duty in that respect. The authority for the construction and maintenance of the water-works, was for the benefit and advantage of the defendant, and not the commissioners. The defendant, having accepted such provision, has accepted the agents appointed for it by the State, and becomes responsible for their acts, as if appointed by itself. By these cases, it is evident that the defendant would be held liable, notwithstanding the quasi corporate character of the commissioners, upon the theory that such commissioners were acting for the defendant, and without any personal interest or profit to themselves. But it is believed that the defendant may be made liable, upon the further -ground that it was the express and exclusive duty of the defendant, to keep in repair the streets of. said village; this was not done. The superintendent of the water commissioners was also the superintendent of highways of the village, whose duty it was to keep the streets in repair, or, in case they were necessarily out of repair, to so guard and protect the public, that no injury should come therefrom. This superintendent directed this excavation to be made, and knew of its existence. His knowledge was the knowledge of the defendant. By his neglect to repair the highway or guard against accident, the defendant became liable for plaintiff’s damages.

The judgment and order appealed from should be affirmed, with costs.

Present—Miller, P. J., Bocees and Boardmae, JJ.

Judgment affirmed, with costs. 
      
       Bailey v. Mayor, &c., 3 Hill, 531; affirmed 2 Den., 433 ; Conrad v. Village of Ithaca, 16 N.Y., 158, and note, p.161; Diveny v. City of Elmira, 51 N. Y., 506.
     
      
       Davenport v. Ruckman, 37 N. Y., 568; Hutson v. Mayor of New York, 9 N. Y., 163.
     