
    John A. Getty, Resp’t, v. The Town of Hamlin et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Appeal.
    Where the case does not show that all the evidence is contained in it, the sufficiency of the evidence to support the verdict cannot be called in question on appeal.
    2. Towns—Bridges.
    Where an accident resulted from a defective approach to a bridge, and the next day the highway commissioners went upon the ground and made the approaches safe, and it was shown that shortly before the accident one of the commissioners had procured materials for repairs, the -jury may infer that such commissioners had funds or the power to obtain them
    
      3. Same—Lack ok funds no defense to actions fob injubies.
    
      It seems that, since the passage of chap. 700, Laws of 1881, lack of funds is not a defense to a town sued for negligence in failing to keep highways in a safe condition.
    Appeal from a judgment entered in Monroe county on the .verdict of a jury, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court.
    
      J. D. Decker, for resp’t; G. G. Davy, for app’lts.
   Macomber, J.

This action is brought against the two towns, who were jointly made defendants, to recover damages for injuries received by the plaintiff by being thrown from his wagon while driving upon a defective approach to a bridge on the highway running n@rth and south between the towns of Hamlin and Kendall, known as the town line road. This road is crossed by a • stream called Sandy Creek, over which the bridge was erected, forming a part of the public highway. The action is brought to charge the defendants, jointly, with negligence, in failing properly to maintain in suitable order the bridge and its approaches, whereby the same were permitted to become out of repair by the highway commissioners, which resulted in the injuries for which compensation hs sought

Upon the former appeal from a judgment of nonsuit at circuit, 46 Hun, 1; 11 N. Y. State Eep., 96, it was held by this court that the allegation of the complaint that the highway, including the bridge, was at all points upon the line between the towns, and that the bridge had been constructed by the two towns and maintained by them for a number of years next preceding the beginning of the action up to the time of the injury, were admitted by the answer of both defendants, and that, consequently, the towns could not properly he heard to claim upon the trial that there was no legal obligation upon them, or that such obligation rested only upon one of them by virtue of an arrangement between themselves by which the bridge and its approaches should be kept in a proper state of repair wholly by the town of Kendall alone. It was there also held under the pleadings that it was not competent for the defendants to show that this portion of the highway was wholly in the town of Hamlin. The court there further treated the denial of the allegation of the complaint that it was the duty of the defendants jointly to maintain the bridge and keep it in repair at their joint expense as a mere conclusion of law, and that it did no operate to limit or qualify the admission of- the facts alleged in the complaint and previously admitted in the answer.

It followed, therefore, that the liability of the two towns to repair and keep the approach of the bridge in good order necessarily resulted under the statutes and the decisions of the courts applicable to the subject 1 R. S., 501, § 1; Laws of 1841, chap. 225, § 1, as amended by the Laws of 1857, chap. 383, § 1; Lapham v. Rice, 55 N. Y., 472; Day v. Day, 94 id., 153. It was furthermore held in that decision that it conclusively appeared that the defendants had recognized their legal liability and had acted upon the same for several years. The allegations of the complaint, under § 522 of the Code of Civil Procedure, not being controverted by the answer, must be taken as true, for the purposes of this action.

It was intimated in the previous decision that the defendants might possibly apply to the court for an amendment of the answer so as to raise these questions. We find in the record an order of the special term permitting such amendment upon terms, but no amendment was in fact made, as is disclosed by the record, in pursuance of such leave.

It appears, therefore, that so far as this court is concerned, the principal and legal question has been adjudicated adversely to the claim made by the defendants. Upon the second trial there remained three questions which were solely questions of fact to be determined by the jury, and these were (1), Whether the approach to the bridge was in a dangerous and unsafe condition at the time the plaintiff received the injuries. (2), Whether the defendants or the commissioners had knowledge or notice that such approach was unsafe and dangerous, and (3), was the plaintiff using ordinary and reasonable care in the management and control of his team while going upon the bridge. All of these questions were fully presented in an elaborate charge to the jury by the learned justice at the trial, and no exception was taken by either side to any portion thereof.

It is claimed by the counsel for the appellants that the verdict is against the weight of evidence. The case does not disclose the fact that all of the evidence is contained in it. The sufficiency of the evidence, therefore, to support the verdict cannot successfully be called in question upon this appeal. Porter v. Smith, 107 N. Y., 533; 12 N. Y. State Rep., 479; Spence v. Chambers, 39 Hun, 193. We have, nevertheless, examined in detail the testimony taken, and are satisfied that the jury acted upon a clear preponderance of the evidence in determining all of the questions in favor of the plaintiff.

Besides the question arising upon the merits, it is contended by the appellants that there were no funds in the hands of the commissioners of highways of either of these towns at the time of the accident, and, therefore, no liability was incurred by either of them. This court has decided in the case of Bidwell v. Town of Murray, 40 Hun, 190, as well as in this case upon the former appeal, that lack of funds is a matter of defense, and the burden of showing it is upon the defendant. In the case of Bryant v. Town of Randolph, 6 N. Y. Supp., 441; 24 N. Y. State Rep., 825, a doubt was expressed- whether, under chapter 700 of the Laws of 1881, which permits actions for negligence to be brought against the town and not against the commissioners of highways personally, as was formerly done, the rule pertaining to want of funds was applicable; for the town, unlike the commissioner, if without funds, has the power to raise them by taxation. ÍSTo reason is perceived for longer holding this rule exempting towns from liability where lack of funds in the hands of the commissioners is shown, any more than there is in such a defense by any person. In the case of Bryant v. Town of Randolph, supra, it was conceded by plaintiff’s counsel that the old rule was applicable. For this and for the further reason that the question was not distinctly raised there, it was not definitely passed upon. There is no such concession made by counsel in this case, yet, from abundance of caution, evidence was given from which the jury was justified in drawing an inference that the highway commissioners had sufficient funds to make these needful repairs at the time the plaintiff was injured, for the next day after the accident they went upon the ground and proceeded to put the approaches to the bridge in a safe condition. There was also evidence that one of the commissioners had procured materials to make repairs shortly before the accident. Judge Smith, in an opinion upon the previous hearing, says: “From that evidence it was competent for the jury to infer that the commissioners had the requisite funds or means to repair before the accident happened, even if it was incumbent on the plaintiff to show - that the commissioners had funds or the power to obtain them.” Substantially the same evidence was given upon the second trial, and consequently it is unnecessary definitely to pass generally upon the question, whether lack of funds can be a defense in an action under the statute against the town.

We have examined all of the exceptions arising during the trial, and find in them no error which would lead to a reversal of the judgment.

It follows that the judgment and order appealed from should be affirmed.

Barker, P. J., and Dwight, J., concur.  