
    Catherine A. Whitlock, Respondent, v. The Town of Brighton, Appellant.
    
      Highways — defense, where an accident occurs, of no funds — duty of the commissioner of highways to procure funds Laws 1890, chap. 586, § 10.
    Where a town seeks to be relieved from liability to one who has been injured, by the neglect of its highway commissioner to repair a defect known by him to exist in a public highway or bridge, it is not sufficient for the town to show that the commissioner had no funds in his possession by which he could cause the necessary repairs to be made, but it must also be shown that he had sought, through the proper channels, to procure fund's.
    Where a. defect has existed in a highway, with the knowledge of the commissioner, for more than a year before the accident, the commissioner of highways must be assumed to have had, within the year, ample funds with which to make the repairs, and ample time within which to procure them, and it will not be a defense to the town that he had no funds at the particular time when the accident happened.
    A commissioner of highways may, under the statute, with the consent of the town board, make such repairs as are necessary, although he has no available funds, and his expenditure, under such circumstances, becomes a claim against the town, for which it must reimburse him.
    Where an action is brought, predicated upon his negligence, the commissioner of highways must show that he has availed himself of this statutory provision in his favor, and if he has not done so, it is a clear neglect of a duty, which was ■owing to the person injured.
    Appeal by the defendant, The Town of Brighton, from a judg- ' ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of April, 1895, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 30th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The jury rendered a verdict in favor of the plaintiff for $3,000.
    On the 21st^day of January, 1893, the plaintiff was walking along one of the highways in the town of Brighton. There had been a heavy fall of snow the night before, re-enforcing snow already upon the ground, and as she reached a bridge over one of the streams crossing the highway upon which she was walking she was overtaken by a gentleman in a sleigh,' driving his horse upon a trot. As she stepped out of the beaten path to allow him to pass, her foot and leg passed through a hole in the bridge and she received the injuries of which she complains. The hole detained her leg in the bridge so that she could only be released therefrom by the gentleman’s, going to the neighbors and obtaining an axe and cutting away a portion of the wood of the bridge. The evidence tended to show that the hole had continued in the bridge in practically the same condition as it was at the time of this injury, since sometime in the fall of 1891, and that the commissioner had been notified of its existence and the necessity of reparation.
    It also appeared that after the plaintiff’s injuries an abscess formed upon the injured member, which was subsequently lanced, but that it continued to discharge, and was treated by a physician for nearly two months, and that during the greater portion of this time she was confined to her bed, and suffered to such an extent that at one time her life was despaired of.
    
      Theodore Bacon, for the appellant.
    
      William F. Cogswell, for the respondent.
   Adams, J.:

It was incumbent upon the defendant, through its commissioner of highways, to employ all reasonable effort to keep its highways and bridges in a proper state of repair, and this action is brought upon the theory that the defendant has been guilty of an omission of its duty in this regard. The question of the defendant’s negligence, as well as that of any want of care on the part of the plaintiff which may have 'contributed to the injury of which she complains, was submitted to the jury, as was also the question of the extent of the plaintiff’s injuries, and as the evidence in the case is ample to justify the conclusion reached, their verdict must be regarded as controlling upon these issues.

Several questions, however, are presented upon this appeal which arise upon exceptions taken during the progress of the trial, and more particularly to certain portions of the charge of the learned trial justice, and to his refusal to charge in accordance with the various requests made by the defendant’s counsel.

The exception upon which the defendant apparently relies with some confidence, and the only one which, we think, requires any especial consideration from this court, is that which relates to what was said by the trial justice in regard to the liability of the defendant, in view of the fact that it was claimed the evidence showed that the commissioner was not in possession of any funds available for highway reparation; although it is quite likely that the same question was involved in the defendant’s motion for the dismissal of the complaint at the close of the evidence. It appears that the plaintiff’s complaint contains an allegation that the commissioner of highways had in his possession adequate funds, or the means to procure the same, to defray the expense of proper repairs to the bridge in question. This, however, did not require that the plaintiff should affirmatively establish the facts pleaded, because, as has been repeatedly held, the want of funds or the means of procuring the same, is always a matter of defense. (Bidwell v. Town of Murray, 40 Hun, 190; Getty v. Town of Hamlin, 46 id. 1; Hover v. Barkhoof, 44 N. Y. 113-118 ; Clapper v. Town of Waterford, 131 id. 382.) In other words, to relieve the defendant from liability to one who has been injured by the neglect of its highway commissioner to repair a defect known by him to exist in a public highway, it is- not sufficient to show that the commissioner had no funds in his possession wherewith to cause the .necessary repairs to be made, but it must also be shown that he had sought through the proper channels to procure the same. It did appear upon the trial of this action that at the time this accident occurred, the commissioner was not in possession of any funds with which to repair the defect ih this bridge; but it also appeared that the defect had existed for upwards of a year prior to the accident, and that the commissioner had actual knowledge of its existence. With these facts established it is hardly sufficient to say that the necessary funds were lacking at the time the plaintiff received her injury, for it is manifest that at sometime during the existence of this defect, that is, within a year preceding the accident, the commissioner must have been possessed of ample means to repair the same, and this of itself would seem, to be a perfect and complete answer to the claim which is now made. But were this not the case, the opportunity "to obtain sufficient funds for such purpose was clearly available to him.

The learned trial justice in that portion of his charge which is criticised, said to the jury, that where a commissioner discovered that a bridge needed repairing and had no funds in his hands for that purpose, he might apply to the. town board for permission tó repair it, and if the .town board gave its permission he might pledge the credit of the town for such repairs. The last part of this statement was possibly a trifle inaccurate, but the court doubtless had in mind the provisions of the statute which enable the commissioner, with the consent of the town board, to make such repairs as are necessary to the highways and. bridges within his territorial jurisdiction, although he has no funds available therefor; and had he taken this step • the expenditure made by him would have been a claim against the town which it would have been obliged to reimburse him for. (Laws of 1890, chap. S68, § 10.) Thus it will be seen that practically the credit of the town is pledged for the expense of necessary repairs. Having this means at his command, it was obligatory upon the defendant to show that he had availed himself of it; and, failing so to do, it was clearly a neglect of a duty which was owing to this plaintiff, as well as to every other person who had occasion to travel over this bridge. ( Warren v. Clement 24 Hun, 472, and cases there -cited.)

We conclude, therefore, that the learned trial justice committed no error in' submitting this question to the jury, and that no sufficient reason is presented for disturbing the verdict rendered.

The judgment and the order appealed from should consequently be affirmed.

All concurred.

Judgment and order affirmed, with costs.  