
    Celia Murphy, an Infant, by Mary Ann Murphy, Her Guardian ad Litem, Appellant, v. The Delaware and Hudson Company, Respondent.
    Third Department,
    May 8, 1912.
    Railroad — duty of municipality to keep highway bridge over railroad in repair — injury by falling through bridge — failure of municipality to serve notice to repair.
    Under section 93 of the Railroad Law (Laws of 1910, chap. 481) it is the duty of a municipality to keep a walk on a highway bridge over a railroad, constructed prior to July 1, 1897, in repair or to serve notice upon the railroad company requiring it to make repairs.
    Hence, a child, who tripped in a hole in the walk on such a bridge and fell to the railroad track below and was injured, cannot recover against the railroad company, where no notice has been given to such company requiring it to make repairs.
    Betts, J., dissented.
    Appeal by the plaintiff, Celia Mtifphy, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 28th day of June, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Washington Trial Term.
    
      Rogers & Sawyer [J. E. Sawyer of counsel], for the appellant.
    
      Lewis E. Carr, for the respondent.
   Kellogg, J.:

The defendant’s railroad passes under a bridge forming a part of the highway at McCrea street, in Fort Edward. The bridge was erected by the defendant when it constructed its railroad through and under McCrea. street, about 1869, and has since been reconstructed and maintained by it prior to 1909. Along the roadway of the bridge, and forming part of it, is a sidewalk, laid with four-inch plank running lengthwise. One of the planks had become rotten at its edge, and there was a hole in it five or six feet long, from two to four inches wide and from one to three inches deep. The plaintiff, five years of age, tripped in the hole and fell between the plank and the guard rail onto the railroad track below and was injured. The accident happened in September 1910.

Section 64 of the Railroad Law, as amended by chapter 153 of the Laws of 1909, which was re-enacted in section 93 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), provides, among other things: “When a highway crosses a railroad by an overhead bridge, the framework of the bridge and its abutments shall be maintained and kept in repair by the railroad company, and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality in which the same are situated; except that in the case of any overhead bridge constructed prior to the first day of July, eighteen hundred and ninety-seven, the roadway over and the approaches to which the railroad company was under obligation to maintain and repair, such obligation shall continue, provided the railroad company shall have at least ten- days’ notice of any defect in the roadway thereover and the approaches thereto, which notice must be given in writing by the town superintendent of highways or other duly constituted authority, and the railroad company shall not be liable by reason of any such defect unless it shall have failed to make repairs within ten days after the service of such notice upon it.”

Under the statute it was the duty of the municipality to put this walk in proper repair, or to serve notice upon the defendant requiring it to make repairs. The notice not having been given, the railroad company is not liable. The liability, if any, rests upon the municipality.

The judgment should, therefore, be affirmed, with costs.

All concurred, .except Betts, J.,' dissenting.

Judgment affirmed, with costs.  