
    Cornelius Campbell, Respondent, v. Charles W. Powers, as Commissioner of Highways of the Town of Fine, Appellant.
    Third Department,
    March 14, 1913.
    Highways — defective highways — action against highway commissioner individually.
    Where the commissioner of highways of a town negligently permits the highways to become out of repair, a person sustaining injuries thereby may bring an action against the commissioner individually, notwithstanding the provisions of section 74 of the Highway Law, permitting an action to be brought against the town because of the neglect of its highway commissioner.
    Appeal by the defendant, Charles W. Powers, as commissioner of highways, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 18th day of November, 1913, upon the decision of the court, rendered after- a trial at the St. Lawrence Special Term, overruling a demurrer to the complaint.
    
      Walter G. Kellogg and Thomas Spratt, for the appellant.
    
      Vasco P. Abbott, for the respondent.
   Per Curiam :

The action is to recover damages for injuries sustained through a defective highway. The complaint alleges that the defendant was commissioner of highways of the town in which the highway was situated, and that he negligently permitted the same to become out of repair whereby plaintiff and .his property were injured. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in that the action was brought against the defendant personally instead of the town of which he was commissioner of highways. The learned trial court held that, notwithstanding the provisions of section 16 of chapter 568 of the Laws of 1890, now embodied in section 74 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), permitting an action to be brought against the town because of the neglect of its highway commissioner, one who is injured by reason of such neglect may, if he choose, bring action against the negligent highway commissioner individually.

The defendant urges that inasmuch as chapter 700 of the Laws of 1881 provided that towns should be liable for damages suffered by reason of defective highways or bridges, in cases in which commissioners of highways were theretofore liable, instead of such commissioners, such immunity in favor of commissioners continues notwithstanding the change in the wording of chapter 568 of the Laws of 1890, and that the remedy of one who is injured is confined to an action against the town itself.

We think the learned trial court was correct in concluding that such was not the case, and that the demurrer to the complaint was properly overruled.

Prior to the act of 1881 a town was not liable for failure to keep the highways, within its boundaries in repair, and no action could be maintained against it because of their defective condition. (People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310.) The highway commissioners of the town were responsible, however, when they had funds for repairs, or could obtain them, on the theory that they were public officers charged with a duty, the omission of which gave rise to a cause of action to the injured party against them. (Hover v. Barkhoof, 44 N. Y. 113; Robinson v. Chamberlain, 34 id. 389.) The past and present situation with respect to this character of action is tersely expressed by Collin, J., in Flansburg v. Town of Elbridge (205 N. Y. 423), as follows: “The commissioners [of highways] were under the statutory duty to care for and cause to. be kept in repair the highways and bridges of the town (Laws of 1890, chap. 568, section 4), and the common law of this State gives a right of action against commissioners of highways who act contrary to or omit to act in accordance with their duty to a person injured thereby, and this right of action it is which the statute made maintainable against the town.” Prior to the statute it was the neglect of the highway commissioner which made him personally responsible, and under the statute it is his neglect which makes the town itself liable. Unless, therefore, the statute which permits the action to be brought against the town exempts him from liability, an action necessarily lies against him as the primary wrongdoer at the election of the person injured. It may be conceded that, while chapter 700 of the Laws of 1881 was in force, an action could not be brought against the commissioner individually. The language of the statute is (§ 1) that the several towns in this State shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such town in the cases in which the commissioner or commissioners of. highways of such town are now by law liable therefor, “instead of such commissioner or commissioners of highways. ” The commissioner of highways being a public officer, the Legislature had the right to exempt trim from liability and impose such liability upon the town which he represented. The language quoted would indicate an intent so to do, inasmuch as a subsequent portion of the act provides for recovery over by the town against the commissioner for any judgment which it shall have paid, as well as the assuming by the town of any judgment obtained against him, presumably in actions then pending. The provision of law, however, with respect to the maintaining of actions against towns because of the neglect of the highway commissioner was radically changed by chapter 568 of the Laws of 1890. That act was a general codification of the highway laws of the State, and is entitled “An act in relation to highways, constituting chapter nineteen of the General Laws.” Most of the chapter consists, of course, of a classification and re-enactment of existing laws. Some new provisions are added, particularly with reference to the laying out of highways and the powers of highway commissioners thereunder. The language of the provision with respect to bringing an action against a town because of the neglect of its highway commissioner is changed and a new provision is added. It is embraced in section 16, and reads as follows: “Every town shall be hable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages unless a verified statement of the cause of action shall have been presented to the supervisor of the town within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement.” It will be observed that the words “instead of such commissioner or commissioners of highways” are omitted, and that the provision with respect to notice is entirely new. While it is true that where a law antecedently to the revision of the statutes is settled, either by clear expression in the statutes, or by adjudications on them, the mere change of phraseology shall not be deemed or be construed as a change of the law (Davis v. Davis, 75 N. Y. 221), still we are of opinion that it was the intent of the Legislature to change the law and to withdraw the prohibition against suing the highway commissioner individually, and that the effect of the law of 1890 was to restore the right to the injured party to sue the commissioner individually if he saw fit. The act is followed by a schedule of laws repealed, and chapter 'TOO of the Laws of 1881 is declared to be wholly repealed. The provision of section 16, requiring notice, is peculiarly significant, and establishes a condition precedent to the maintaining of any action at all against the town. It is very probable that the failure to give the required notice is the reason why the present action is brought against the commissioner individually.

The fact that the plaintiff has added the defendant’s title of office to his name does not make the action other than an individual one. It is only in an action on contract which the highway commissioner has entered into by virtue of his office that he must be sued in his official capacity. (Boots v. Washburn, 79 N. Y. 207.) It was proper to allege in the body of the complaint that he was a commissioner of highways for the purpose of showing that he had a duty to perform.

Our conclusion is that the plaintiff had a right to bring his action against the defendant personally, and that the demurrer to the complaint was properly overruled.

It follows that the interlocutory judgment must he affirmed, with costs, and with the usual leave to withdraw the demurrer and answer upon payment of the costs of appeal and of the trial court.

All concurred; Kellogg, J., not sitting.

Interlocutory judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer upon payment of costs in this court and at Special Term.  