
    LYMAN H. BRYAN and others, Plaintiffs, v. HENRY LANDON, Commissioner of Highways of the Town of Lima, and ROBERT CHAPIN, Commissioner of Highways of the Town of West Bloomfield, Defendants.
    
      Commissioners of Highways—bridges between adjoining towns—effect of neglect to repair— liability of commissUmm's. .
    
    The same liability which commissioners of,highways are under to repair roads and bridges in their respective towns, is imposed jointly upon the commissioners of adjoining towns by chapter 325 of the Laws of 1841, as amended by chapter 383 of the Laws 'of 1857, as to bridges crossing a stream dividing such towns.
    The law is well settled that commissioners of highways are liable to respond in damages to any person suffering special injury in consequence of their neglect of duty.
    
      Motion for a new trial, on exceptions ordered to be heard at the General Term in the first instance. The action was brought to recover damages, sustained by the plaintiff from the breaking down of a bridge over Honeoye creek, which formed the boundary between the town of Lima, in Livingston county, and the town of West Bloomfield, in Ontario county, of which towns the defendants were respectively commissioners of highways. The plaintiff had a verdict at the circuit. The defendant moved for a nonsuit, which was denied, and also took exceptions to the refusal of the circuit judge to charge as requested in some particulars.
    
      W. S. Newman, for the plaintiffs.
    
      E. A. Nash, for the defendants.
   E. Darwin Smith, J.:

That the towns of Lima and West Bloomfield were bound to construct and maintain the bridge in question at their joint expense, was assumed and not disputed at the trial. The bridge crossed a stream dividing said towns, and connected two public highways, laid out, opened and in use, in said towns respectively. The defendants were the commissioners of said towns, and as such were charged with the ,duty of giving directions for the repair of the roads and bridges of their respective towns, and by force of the act of 1841, as amended by chapter 383 of the Laws of 1857, they were also charged with the power and duty of providing for the building and maintaining such bridge between said towns. The bridge in question having been erected and long maintained as a joint bridge between said towns, the defendants, as commissioners of said, towns, having sufficient funds in their hands for that purpose, were clearly bound to.keep it in repair, and in a safe condition for use by the traveling public. The second section of the act of 1841, as amended in 1857, as above stated, expressly provides that, “ commissioners of said towns so liable ” [that is, liable to make and maintain highway bridges, crossing á stream between two towns, at the joint expense of said towns], may be proceeded against jointly, for any neglect of duty in reference to such bridges.”

The same liability which, under the statute and at common law, would attach to these defendants for neglect to repair roads and bridges in their respective towns, we think, under this statute, attaches to them jointly for any neglect in keeping in repair any highway bridge between said towns, constructed at the joint expense of said .towns, and thus by said act, made a joint bridge. As was held in Beckwith v. Whalen, the law imposes an obligation upon two towns, separated by a creek, to build and maintain at their joint expense a bridge over said creek, when such bridge is necessary to connect two highways in the towns respectively.

That is this case; and the duty imposed upon the said towns, the defendants, as the highway commissioners of their respective towns, were bound to discharge. They were held liable at the circuit, in the charge of the judge, only upon the ground of negligence and joint negligence on their part in the discharge of their duty. The verdict of the jury was founded and based upon proof tending to show that the defendants, having notice of the insecurity and defective condition of this bridge, negligently omitted to repair the same. The law is well settled, that commissioners of highways are liable to respond in damages to any person suffering any special injury in consequence of their neglect of such duty.

No error in law was committed by the judge at the circuit in the charge and various rulings, and the motion for a new trial should be denied.

Present—Mullir, P. J., Smith and Gilbert, JJ.

Motion denied, and judgment ordered on verdict. 
      
       1 R. S., 501.
     
      
       Chap. 225, Session Laws, 207,
     
      
      
         Page 788.
     
      
       5 Lansing, 376.
     
      
       Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoof, 44 id., 113.
     