
    Stephen A. Riley, Appellant, v. The Town of Eastchester, Respondent.
    
      Inability of a, town for the condition of its streets — inference that an excavation had been properly inspected— when there is.no notice of a defeat.
    
    Where an excavation made by a water company for the purpose of laying water pipes in a village street, under a contract requiring the company, to restore the street as. nearly as possible to its former condition, has been filled up and the spot driven over in safety for six weeks, the fact that a person who has traveled over the street daily during that time, while driving over it at five o’clock in the morning after it had rained heavily during the night, the street being apparently in a perfectly safe condition, is injured in consequence of a wheel of his wagon sinking into the excavation, does not create a presumption that the water company had failed to perform its contract to restore the street, or that the commissioner of highways was negligent in failing to guard against a defect which was only a few hours old, and so latent in character that a daily driver over the highway neither-saw nor'suspected any danger as he approached ■ the place.
    Appeal by the plaintiff, Stephen A, Riley, from a judgment of the Süpréme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of February, 1897, upon the dismissal of the complaint upon the merits directed by the court at the close of the plaintiffs case after a trial before the court and a jury.
    
      William Riley, for the appellant.
    
      Herbert D. Lent, for the respondent.
   Willard Bartlett, J.:

The purpose of this action is to charge the town of Eastchester with the consequences of an accident which happened to the plaintiff while driving with his horse and wagon along a highway in that town, known as Main street, on the morning of the 15th day of November, 1895. Excavations had previously been made in the highway by the New Rochelle Water Company under a contract with the town which provided for the laying of water pipes by the corporation. The plaintiff’s claim is that his wagon sunk and fell into one of these excavations which had not been properly filled up, so that the vehicle was upset and broken, the milk which it contained was lost, and other damages were sustained amounting in all to the sum of $500.

The suit is brought under section 16 of the Highway Law, which declares that every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. (Laws of 1890, chap. 568.) The next section gives the town a right of action against the negligent commissioner for the amount of the judgment. Both provisions are derived from chapter 700 of the Laws of 1881, and were evidently intended to preserve and continue in force the law as established by that statute in respect to the liability of towns for accidents upon its highways or bridges. (Waller v. Town of Hebron, 5 App. Div. 577.)

Under the act of 1881, the responsibility of the town was measured by the responsibility of the commissioner, who was chargeable only where the injury was due to his failure to exercise ordinary care in the performance of his duties. (Lane v. Town of Hancock, 142 N. Y. 510.) This is said to be “ such care and conduct on the part of the commissioner as a reasonable and prudent person would ordinarily have exercised under the circumstances of the situation.”

Apjplying this measure of duty, to the conduct of the commissioner of highways of Eastcliester in the case at bar, we cannot see how he can .be deemed negligent. The contract with the New Rochelle Water Company provided that the corporation, after using the streets, in the course of the work, should restore them as nearly as possible to their former condition. The company also agreéd to pay for the services of an inspector, to be appointed by the town, at all times while work under the contract was being done upon the roads, streets, avenues dr other public places; and such an inspector was duly appointed.

The excavation at the place of disaster had been filled up about six weeks before the accident happened, and the plaintiff himself testified that during these six weeks he drove over it daily every morning. When he approached it, on the occasion of the injury,, it looked all right, he says, and he thought it was all safej but during the previous night there had been a.heavy rain .and his wheel sank down nearly eighteen inches and tipped- his wagon over.'

If this portion of the highway was apparently in a perfectly safe condition, and was believed to-be so by the plaintiff himself, who traveled' over it every- day, it would be most unreasonable to hold that the commissioner of highways was bound to anticipate and guard against a change that was evidently not expected by those most familiar with the locality, and which must have occurred in consequence of the rain in the night. The accident took place very early in the morning at ten minutes to five — and the law will not-impute notice to the commissioner, by reason of the lapse of time,, of the existence of a defect only a few hours old at most and so latent in character that a daily driver over the highway neither saw nor suspected any danger as he approached the place. , The fact that the spot had been driven over in safety every day for six weeks after the excavation was filled up tended to show that the work done by the New Rochelle Water Company had been properly inspected in behalf of the town, and that the company had performed its engagement to restore the road, as nearly as possible, to its previous condition. In no view of the case can the commissioner be held liable for not knowing more than the plaintiff knew about the true state of the highway at the point in question,, or be regarded as • negligent within' the established rules in respect-, to the duties of such an officer. (Lane v. Town of Hancock, supra, and cases there cited.)

The complaint was properly dismissed,, and the judgment in favor of the defendant should be affirmed.

All concurred.

Judgment unanimously affirmed, with costs.  