
    The Town of Fort Covington, Respondent, v. The United States and Canada Railroad Company and The Grand Trunk Railway Company, Appellants.
    
      Towns—a town may sue for the destruction of a highway bridge—authority tobring the action—noinferencefrom the verification of the complaint—the question must be raised by motion— liability of railroads for building a bridge which causes ice to back up and destroy a town bridge above it—Laws 1890, chap. 569, §§ 24, 182.
    A town has sufficient property in a highway bridge to maintain an action for its inj ury or destruction, and such an action is, under the Town Law, passed in 1890, properly brought in the name of the town. The fact that a supervisor verities the complaint in such an action affords no presumption that the action was not brought by and is not in the charge of the highway commissioner, as any officer who knows the facts may verify the complaint.
    It is not necessary to prove on the trial of such an action that authority to bring it was given by a town meeting.
    If such authority were necessary, it would be the duty of the defendants to move to dismiss the complaint upon that ground, as the question is not one of the issues in the case and can only be presented by motion.
    Where two railroad companies are each responsible for the existence of a bridge in a stream, and an ice jam forms, because of insufficient openings between the piers of this bridge, and the ice backs up and destroys another bridge above belonging to a town, the town may maintain an action against both railroad companies for the loss.
    The question whether the openings between the piers of the railroad bridge were sufficient to allow the ice to pass through is properly left to the jury for decision.
    Appeal by the defendants, The United States and Canada Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 26th day of October, 1895, upon the verdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on the 22d day of October, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover damages sustained by the carrying away of a bridge across a river, which bridge ,was owned and maintained by the plaintiff, and was alleged to have been destroyed by the negligence of the defendants.
    
      William P. Cantwell, for the appellants.
    
      John P. Kellas, for the respondent.
   Parker, P. J. :

The objections taken by the appellants, that the town has no such property in a highway bridge as will sustain a recovery for its injury or destruction, and that this action is not properly brought, cannot, in my judgment, be sustained. In Bidelman v. State of New York (110 N. Y. 232) it is squarely held that a town has such an interest in the preservation of its bridges as gives a right of action against any person who wrongfully, by negligence or otherwise, makes repair or rebuilding necessary. By section 182 of chapter 569, Laws of 1890, it is provided that any action to recover damages for injury to the property of a town shall be brought in the name of the town. Here, is a sufficient authority for bringing the action in the name of the town, and to sustain the claim that loss of the bridge Was an injury to its property.

It is further complained that the action is brought by the supervisor, and that the highway commissioner is the only officer who can maintain the same. The record does not disclose what officer has instituted or has charge of this action, except that the complaint is verified by the supervisor of the town. Such verification does not raise any presumption that the highway commissioner is not the officer in charge of the action. The recovery is to be had in the name of the town. In that respect the record is correct, and we cannot presume that the action is being improperly prosecuted. Any officer who knew the facts might verify the complaint. Moreover, no such objection seems to have been taken prior to the appeal, and it should not now for the first time be entertained. The appellants took the further objection, by a motion for a nonsuit, that it had not been proven that authority to bring the action had b.een given by any town meeting, as required by statute (referring to § 24, chap. 569, Laws of 1890). We do not think that action on the part of the town meeting, under that section, is a fact necessary to be averred and proven in order to entitle a town to recover upon a cause of action shown to exist in its favor. If the defendants had any advantage, arising from such an omission, and wished to secure it, they should have moved to dismiss the action on that ground. It is not, in my judgment, one of the issues to be tried in the action. Whether plaintiffs have legal authority to sue can only be presented on motion. (People v. Clark, 21 Barb. 214; Supervisors v. Pindar, 3 Lans. 8-14.)

It is strenuously urged by the appellants that the facts proven do not show any wrongful act or neglect on their part to which the plaintiff’s loss can be ascribed. The extent to which the defendants might interfere with the natural flow of the stream, and the rule of law which fixed their liability, were correctly stated by the trial couvt in its charge to the jury. (Bellinger v. N. Y. Central R. R., 23 N. Y. 42; Higgins v. N. Y, L. E & W. R. R. Co., 78 Hun, 567.)

And whether or no the structure which they had built across such stream violated such rule and caused the destruction of the plaintiff’s bridge was a question of fact for such jury. I have carefully examined the evidence on this question, and I conclude that their verdict should not be disturbed in this respect. Although there was more ice formed that year, perhaps, than usual, the flood does not seem to have been an unusual or extraordinary one. There was evidently a serious ice jam formed in consequence of the fact that the openings between the piles of the railroad bridge were not wide enough to allow the ice to pass through. There is considerable direct evidence that the ice backed up and lifted the town bridge off its seat on the piers and abutments, and I do not consider the defendants’ expert evidence conclusive on that question.

It seems that the railroad bridge was constructed and owned by one of the defendants, and after the lease its repair and maintenance seems to have been the joint act of both. Both were responsible for its being there, and I am by no means prepared to hold that eleven-foot openings were sufficient, or could reasonably have been expected to be sufficient, in such a stream as that. That question was well left to the jury, and their decision should not be reversed. As to the question of plaintiff’s negligence, there is nothing in the case indicating any act or omission on its part that can be said to have contributed in any proper sense to the taking off of the bridge. No defense in this action can be sustained upon that ground.

It is a more serious question whether the jury have not given more damages than the evidence will warrant. The town is held to have an interest or property in the bridge because it is under an obligation to keep it in repair and make it suitable for public travel; and the measure of its damages would, therefore, seem to be the amount which it must necessarily expend to repair or restore it. Such is the rule which was recognized and applied in the Bidelman case, above cited. In the case at bar two witnesses were sworn by plaintiff upon the question of damages. McKinney puts the cost of restoring the piers at $2,000. He gives no figures whatever as to the cost of restoring and replacing the iron bridge. Storm, the other witness, puts the expense of replacing the piers at $1,500, and to put the old bridge back he says would cost from $1,150 to $1,200. There does not seem to be any dispute but that it was practicable to recover and replace the same bridge which was carried away. Evidently Storm, who put up the new piers, is a much more competent witness than McKinney, who seems to have had very little practical ■or personal knowledge on the subject. The evidence of Nash, the defendants’ witness, on this subject is, that the piers could have been rebuilt for $240, and that the bridge could have been restored and replaced for $600. Here is a vast conflict in the evidence, and - while Nash was the man who built the old bridge, and evidently had had greater experience in the business than the others, we cannot say that the jury should have adopted his figures and discarded the others. But the verdict is for $3,636.50, a figure considerably more than it appears from plaintiff’s evidence it would have cost to replace the bridge. For instance, McKinney makes cost of rebuilding piers $2,000, and Storm makes cost of restoring and replacing bridge, $1,200; total, $3,200, at plaintiff’s highest figures. But Storm’s estimate of rebuilding piers was only $1,500, which would make the total expense of restoring the bridge and piers only $2,700. In my judgment, this is the extreme sum which plaintiff should have recovered. I do not find that there are any exceptions in the case which require a reversal of the judgment.

My conclusion is that the amount of the damages specified in the judgment should be reduced to §2,700, and if plaintiff consents to that, the judgment as so modified should be affirmed, without costs of this appeal to either party; otherwise the judgment should be reversed, and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to reduce the verdict to §2,700. If stipulation to that effect is served within twenty days after the written notice of this decision, then the judgment as so modified is affirmed, without costs of this appeal to either party.  