
    Hiram K. Scott, Jr., Respondent, v. Town of North Salem, Appellant, Impleaded with Charles F. Ganung and Frank W. Hoyt, Respondents.
    Second Department,
    April 22, 1910.
    Practice — entering judgment — new trial — highway — town — negligence — pleading.
    The fact that a judgment is entered pending the determination of a motion for a new trial does not deprive the court of power to grant the motion, and when this is done the judgment should be vacated as a necessary matter of form. "
    
      A complaint in an-action against a town to recover ior injuries caused by a defect in a highway, which fails to allege that at the time of the accident the highway was within the jurisdiction of the town or its highway commissioner, does not state a cause of action.
    An allegation that the highway was at the time of the accident in process of improvement by'the State under chapter 115 of the Laws of 189,8, as amended, is insufficient in the absence of an allegation that the supervisors had accepted it before the time of the accident.
    Appeal by the- defendant, the Town of North Salem, from an order of the County Court of Westchester county, entered in the office, of the clerk of said county on the 20tli day of November, 1909, denying a motion to vacate an order, entered in said clerk’s office on the 8th day of November, 1909, which granted a new trial' .as against the said defendant, with notice of an intention to bring up for review the said order granting a new trial.
    
      Frank L. Young,, for the appellant.
    
      John R. Bushong [ William R. Condit and Charles Everett Moore with him on the brief], for the plaintiff, respondent.
   Carr, J.:

The plaintiff has- brought this action against the town of North Salem and the other defendants above named to recover damages for injuries to his horse and wagon, alleged to have* been caused by the defective condition of a public highway. The cause of action arose on December 17, 1905. When the action came on for trial at the County Court, in Westchester county, on November 11, 1908, and after a jury was sworn, the defendant the town of North Salem moved for a dismissal of the complaint on thé ground that it failed to state a causé of action against the town. The- motion was granted, and a judgment was subsequently entered dismissing the complaint, as against the town of North Salem, with costs. The trial, however, continued against the other parties, and during its course a motion was made by the other parties for a dismissal of the complaint as against them, which was likewise granted. Thereupon the court entertained a motion' by the plaintiff for a new trial, and on said motion heard all the defendants. Subsequently, the court granted, a motion for a new trial as against the town of North Salem, and denied it as against the other defendants. The town of ¡North Salem thereupon moved to vacate the order granting a new trial so far as it was concerned. From an order denying this motion to vacate the town now appeals to this court. It is insisted by the appellant that the order of the County Court granting a new trial was irregular after the entry of a judgment dismissing the complaint, and that the only remedy left to the plaintiff on the entry of said judgment was to appeal therefrom. The mere fact that judgment was entered pending the determination of the motion for a new trial did not deprive the .court of its power to grant a new trial. The new trial being granted the necessary result was to require the vacation of the judgment as a matter of necessary form. We cannot see in the practice below any irregularity which would require a reversal of the order there made.

There is, however, a serious question raised by the appellant ■ as to the' sufficiency of the complaint to state a cause of action against the town of ¡North Salem. The negligence set forth is that of the highway commissioner of the town, but there is no appropriate allegation that the.highway in question was, at the time of the accident, within the jurisdiction of the town or its highway commissioner.. The plaintiff has pleaded specifically that, at the time of the accident, the highway was in process of improvement by the State under chapter 115 of the Laxvs of 1898, as amended. Whenever the State undertook to make an imprpvement under this statute, the control of the highway passed out of the town until the improvement was completed and accepted, in the manner provided by the statute. During the improvement the highxvay was under the control of the State Engineer and the contractors who were doing the work. Section 12 of the statute, as amended by chapter 53 of the Laws of 1902 and chapter 426 of the Laxvs of 1904, Which was in force at the time of the happening of the accident in question, regulated the circumstances under which the commissioners of highways should undertake the care and management of a highway improved under that statute. After the work was completed under the contract with the State, it became the.duty of the State Engineer to notify the board of supervisors of .the county of the completion of the work, and to call upon them to accept the highway. After the acceptance of the highxvay by the hoard of supervisors, the statute provides that it should be maintained as “a county road,” and the “ commissioners of highways of the town or towns respectively wherein such improved highways lie shall care for and keep the same in repair, under the direction and supervision of the State Engineer and Surveyor and such rules and regulations as he may prescribe.”

There is no allegation whatever in the complaint that this road,. after its improvement under the act of 1898, had been before the time of the accident accepted by the board of supervisors, and under the care and management of the commissioners of highways of the defendant town. The liability of the town is wholly statutory, and it could not be held answerable for the negligence of its highway commissioners unless, at the time of the accident, some duty was imposed upon them by law in relation thereto. (See Lane v. Town of Hancock, 142 N. Y. 510; Waller v. Town of Hebron, 5 App. Div. 577.) But the duty to care for this highway did not devolve upon the highway commissioners until after the State had surrendered control thereof in the manner provided by the statute, and the board of supervisors had accepted it as “ a county road.” Under the circumstances we think that the complaint does not state a cause of action against the defendant town, and that the earlier decision of the County Court dismissing it as against the defendant "was correct. It was error, therefore, to grant the motion for a) new'trial, and the order appealed from should be reversed, with ^osts, and motion to vacate granted, with ten dollars costs.

Jenks, Burr, Thomas, and High, JJ., concurred.

Order of the County Court of Westchester county reversed, with costs, and motion to vacate granted, with ten dollars costs.  