
    Elizabeth Taylor, Appellant, v. The Village of Matteawan, Respondent.
    Second Department,
    November 22, 1907.
    Village — negligence — defective bridge'— when village not liable.
    A village is not liable for injuries received by reason of the defective condition ■ of a bridge within its corporate limits, if prior to its- incorporation the bridge was under the exclusive jurisdiction of the town, unless pursuant to sections 143 or 143 of the General Village Law, the village has assumed to repair or . exercise jurisdiction thereover..
    The rule as to the liability of an incorporated village for. defective bridges, as is-existed under chapter 391 of the Laws of 1870, was not changed by the repeal of that statute on the enactment, of the General Village Law, for the latter substantially re- enacted the provisions of the former statute,- and the decision thereunder are still applicable.
    . Appeal by the plaintiff, Elizabeth Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 23d day of January, 1907, upon the report cf a referee dismissing the complaint upon the .merits.
    
      W. E. Hoysradt [Charles Morschauser with him on the brief], for the appellant.
    
      James G. Meyer, for the respondent.
   Rich, J.:

This is an appeal from a judgment entered upon the report of a referee in an action to recover damages for a personal injury. The learned referee dismissed the complaint upon the ground that the town of Eishkill was solely liable for the result of the dangerous conditions which were found to be the cause of plaintiff’s injury.

The defendant was incorporated as a village in 1886. Before that time a highway called the “ Old 'Road ” in which had been constructed a bridge crossing a small, stream, was one of the highways of the town'of Eishkill, in which tow;n the village of Matteawan is situate, said bridge being within the corporate limits of said village. Before the incorporation of the village said town of Eishkill had the entire and exclusive jurisdiction over the bridge referred to and its approaches, and was charged with the dnty of repairing and maintaining it. This, jurisdiction and duty continued after the incorporation of the village, notwithstanding such bridge was within the limits of said village, unless some act on the part of the latter relieved the town and placed a corresponding duty and liability upon the village. (General Village Law [Laws of 1870, chap. 291], tit. 8, § 27 ; Washburn v. Village of Mount Kisco, 35 Hun, 329 ; Village Law [Laws of 1897, chap. 414], §§ 141-143.) The latter act provides for the care and maintenance of bridges and their approaches in the following language : Section 142. “If at the time this chapter takes effect, the board of trustees of a village has the supervision and control of a bridge therein, it shall continue to exercise such control under this chapter. In any other case, every public bridge within a village shall be under the control of the commissioners of highways of the town in which the bridge is wholly or partly situated, or such other officer as may be designated by special law, and the expense of constructing and repairing such bridge and the approaches thereto is a town charge, unless the village assumes the whole or part of such expense.” Section 143. “A village may assume the control, care and maintenance of a bridge or bridges wholly within its boundaries, upon the adoption of a proposition therefor at a village election; or a proposition- may be adopted authorizing the board of trustees to enter into an agreement with the commissioners of highways of a town, in which any part of such village is situated, to construct or repair a bridge in any part of the village included in such town, at the joint expense of the village and town, which agreement shall fix the portion to be paid by each.” It appears that the village never assumed any duties with reference to the bridge.in question, never repaired or assumed to exercise jurisdiction over it, and it, therefore, remained a town bridge under the exclusive jurisdiction and control of the town which was charged by the statute with the duty of its repair and maintenance. The referee has fdund that the place where plaintiff fell, and the dangerous and defective conditions there existing causing the injury, was on the bridge or its, approach. The sole question presented, therefore, is whether for this dangerous and defective condition the respondent is liable. A careful consideration of this, question satisfies me that the referee' correctly disposed of the case and .that the judgment must be affirmed. ,

It was held in Washburn v. Village of Mount Kisco (supra) that a village incorporated under the provisions of chapter 291 of the Laws of 1870 was not bound to repair bridges situate within its corporate limits unless it elected so to do, and that in the absence of such election, the town continued to be bound to repair such bridges, and it, and not the village, was liable to any person injured by its neglect to perform the statutory duty of repairing and keeping them in safe condition, and a judgment recovered in that action against the village within whose limits the bridge was situate was reversed. It is contended by the appellant that that decision is without force, as the present Village Law, which took effect July 1, 1897, repealed chapter 291 of the Laws of 1870; but this contention is without merit, for the reason that the provisions of that statute are substantially re-enacted in the statute of 1897, which makes the decision applicable with equal force to the case at bar.

The case at bar presents two municipalities — the town and village— the latter having exclusive jurisdiction and control of its' highways and sidewalks, charged with the duty of their maintenance and repair, and liable for a neglect of such duty, and the town having exclusive jurisdiction and control of the bridge within thé village limits and its approaches, charged with their maintenance and repair, and liable for injuries sustained as the result of a violation or neglect of this duty.

The respondent was not bound to repair or maintain the bridge in question. It never assumed that duty, never made any repairs to or interfered in any manner with the bridge or its approaches and the statutory duty and liability of the town remained and was operative and in force at all times prior to the accident. For its neglect to perform the duty of keeping and maintaining this bridge in proper repair the defendant is not responsible.

The judgment must be affirmed, with costs.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Judgment unanimously affirmed, with costs. 
      
       See Laws of 1885, chap. 450; Laws of 1886, chap. 556; Laws of 1887, chap. 513, § 3; Laws of 1890, chap. 542, and Assem. Doc. 1897, vol. 22, No. 80, p. 162, § 143, note. — [Ref.
     