
    Elizabeth A. Clapper, Resp’t, v. The Town of Waterford, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Negligence—-Defective highway.
    A person in passing over a wooden bridge over a gutter, which bridge formed a part of a crossing over the highway and had been constructed some years before by the property owners on both sides of the road, stepped ' into a hole in the plank and sprained her ankle. The commissioners had no notice of the defect. Held, that the town was not guilty of negligence in respect to the highway.
    
      2. Same—Laws 1881, chap. 700—Lack op funds.
    The town is liable only when negligence on the part of the commissioner is shown and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands, although the supervisor had funds applicable to such purpose; until the money was paid to the commissioner the only neglect he could be charged with would be a failure to demand it or institute some proceeding to compel its payment.
    3. Same—Evidence—Repairs subsequent to accident.
    Plaintiff was permitted to prove that the commissioner of highways was seen repairing the walk several days subsequent to the accident, for the purpose of showing that he exercised control over the walk and had funds in his hands at the time of the accident to repair it. Held, error; as this action was against the town, and moreover this did not tend to prove that he had funds before plaintiff was injured.
    4. Same.
    The court should submit to the jury the question whether under all the circumstances the commissioner performed his full duty in obtaining funds for the repairs of roads and bridges by requesting the supervisor to pay over to him the highway fund in his hands.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon the verdict of a jury.
    
      J. W. Houghton, for app’lt; P. D. Niver, for resp’t.
    
      
       Reversing 41 St. Rep., 804.
    
   O’Brien, J.

The plaintiff recovered damages for an injury received by her from slipping into ■ a hole in a crosswalk or foot bridge in one of the public highways of the town known as Sara-toga Avenue on the 31st of July, 1889. This highway running north and south was sixty-six feet wide. It has curb lines and sidewalks on both sides. The space between the curbstones is forty ieet. On each side of the rounded road bed there is a gutter extending from the traveled part of the road to the curb line some ■six or eight feet in width which serves to carry off the water from the road. At the point where the accident happened there were residences on both sides of the road and the neighborhood was •quite populous .and the highway was traversed by an electric ■ street railway. Some ten or fifteen years before the accident the residents and property owners on both sides of the road constructed sidewalks, and in connection therewith a stone crosswalk across the road bed. This crosswalk, was extended on both sides of the xoad across the gutters to the curb line by means of a plank bridge or walk about four feet wide and leaving a space between the plank and the deepest part of the gutter of about twelve inches. On the evening of the accident the plaintiff got off a street car at the crosswalk, and desiring to go to her brother’s house a short distance farther on the line of the street, and finding the road bed muddy, she followed the crosswalk leading to ike sidewalk on the side of the road, and while crossing the plank portion of the crosswalk over the gutter she stepped into -a hole in the plank and sprained her ankle. The property own■ers and residents built the'side and cross walks under the authority ■of. statutes then existing. Laws 1860, chap. 61; Laws 1863, ■chap. 93: Laws 1881, chap. 233. The commissioners of highways had no actual notice of the defect in the walk, so far as appears by the evidence. The hole is described by the witnesses .as oblong, running lengthwise between two planks. The largest ■estimate of any witness makes it from four to five inches wide by ten to twelve inches in length. It is difficult to discover from "the proofs in the case any ground upon which the jury could have found that the town or its officers were guilty of any negligence in respect to this highway.

It is admitted that the roadbed, which is the part of a country highway ordinarily required to be kept in a suitable and safe condition for the travelling public, was in good order, and, unless the commissioner was negligent in failing to discover so slight a defect in a plank walk across a gutter on the side of the highway, built by the people who owned property on both sides of the road, there is no ground upon which the verdict in the plaintiff’s favor can stand. But if it be assumed that there was some evi■dence in the case for the consideration of the jury bearing upon the question of the negligence of the defendant in failing, through its proper officer, to discover the hole in this plank walk across ■the gutter on the side of the road and to repair the same, tiere "were errors committed at the trial prejudicial to the defendant and which necessitate a reversal of the judgment By chapter-700 of ."the Laws of 1881, the towns of the state were made liable for damages to any person suffering the same by reason of defective; highways or bridges in such town, in those cases only where the-commissioner of highways was liable at the time of the passage of that act. The defendant is not liable in this case unless, upon the-same facts, the commissioner of highways would have been liable-prior to the passage of the statute. It was always a defense to an action for damages against a commissioner of highways for injuries sustained in consequence of a defective highway, to show that he was without the necessary funds to make the repairs, and-without the power to raise such funds. Barker v. Loomis, 6 Hill, 463; People v. Board of Supervisors, 93 N. Y., 397; Hover v. Barkhoof 44 id., 113; Hines v. City of Lockport, 50 id., 236; Monk v. Town of New Utrecht, 104 id., 552; 6 St. Rep., 484. TLeact of 1881 has not changed the powers or duties of the commissioner of highways. He still has charge of the roads and bridges-in the town, and it is his duty to keep them in repair. The town is liable only when negligence on the part of the commissioner is-shown, and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands.

It was shown in this case that the commissioner had no funds in his hands with which to defray the expense of any repairs to-roads or bridges. It was shown that the supervisor had lunds in his hands applicable to such purpose, but had not paid them over to-the commissioner of highways though the latter had demanded them. The commissioner could, no doubt, have required the supervisor to pay over the fund raised by the town to him for the repair of highways and bridges, but until the money was paid to-the commissioner the only neglect that he could be charged with would be a failure to demand it or to institute some proper proceeding to compel its payment to him, and it is not shown that the.commissioner was guilty of any negligence in that respect.

On the trial the plaintiff was permitted to prove, against the-defendant’s objection and exception, that the commissioner of highways of the town was seen repairing the walk several days subsequent to the accident. It was stated by the plaintiff's counsel, that this evidence was offered only for the purpose of showing that the highway commissioner exercised control over the walk where the accident occurred and that he had funds in his hands-"at the time of the accident to repair it, and the evidence was received for this purpose. When actions of this character were-brought against the commissioner of highways personally, before-the statute, it is possible that such testimony might have been held competent, Morrell v. Peck, 88 N. Y., 398, but now the action, is against the town and it is difficult to see how the acts of the-commissioner subsequent to the accident can be admitted in such an action as proof to bind the town for any purpose. It has frequently been held that the declarations or admissions of a public-officer cannot be given-in evidence to bind a municipal corporation of which he is the agent unless they are part of the res gestee.. Cortland County v. Herkimer County, 44 N. Y., 22; Luby v. H. R. R. R. Co., 17 id., 131; Hamilton v. N. Y. C. R. R. Co., 51 id., 100; Whitaker v. Eighth Ave. R. R. Co., id., 295. And if his •declarations cannot be admitted, the same principle would exclude his acts subsequent to the event in controversy.

Moreover there was no question in the case as to the control or authority of the commissioner over the whole highway between :the fences, the only question in this respect was whether he exercised proper diligence and care, and proof that the commissioner was seen repairing this walk a week or more after the accident •did not tend to prove that he had funds in his hands with which -to make the repairs before the plaintiff was injured. TTpon.what- ■ ever pretense such evidence is put into the case, it is generally used to mislead the jury. It is sometimes accepted by them as •an admission of negligence, and its natural tendency is undoubtedly •to influence them in that direction. Whether the defendant was negligent was a question to be decided upon the facts as they existed at the time of the injury, and anything that was done by the ■commissioner afterwards could have no legitimate bearing on that •question, and since the action now lies against the town, such ■testimony should be excluded. Corcoran v. The. Village of Peekskill, 108 N. Y., 151; 13 St. Rep., 105.

The defendant’s counsel requested the court to instruct the jury tin substance that they might find from the evidence that the commissioner had used reasonable diligence in obtaining funds by ■demanding them from the supervisor, and not obtaining them from him, they were not liable for a failure under such circumstances to repair the walk if it was out of repair. The court declined to so charge, and the defendant excepted. The court should have submitted to the jury the question whether under .all the circumstances the commissioner performed his full duty in •obtaining funds for the repair of roads and bridges by requesting the supervisor to pay over to him the highway fund' in his hands, .•and as the request’fairly embodied this proposition, we think it .should have been charged. There are some other questions in the case, but as a new trial must be granted for the reasons stated, it is unnecessary to. consider them.

The judgment should be reversed, and a new trial granted, costs to abide the event

All concur. •  