
    John N. McMahon, Respondent, v. The Town of Salem, Appellant.
    
      Highway Law — injury from the fall of a bridge in 1895 — inability to obtain funds to repair it must be shown—proof that statements were made by a 'witness which he denies having made.
    
    In an action brought against a town to recover damages for an injury occasioned in 1895, to the person of the plaintiff, by the fall of a defective bridge, it is not a defense to show simply that the commissioner of highways had no funds in his hands applicable to the repair of the bridge; it must also appear that there existed an inability, by the exercise of reasonable diligence, to obtain funds for that purpose, as, by section 10 of the Highway Law, as amended by chapter 606 of the Laws of 1895, it is provided that, if at any time a bridge shall become unsafe, the commissioners of highways of a town may, with the consent of the town board, cause the same to be immediately repaired, although the expenditure of money required may exceed the sum raised for such purposes. Herrick, J., dissented.
    Where, in such an action a physician, called on behalf of the plaintiff, has given evidence tending to show that the plaintiff’s injuries were serious and permanent, and has testified that he had not made statements to others to the effect that the plaintiff had recovered, the parties to whom it is claimed that he made such statements may be called to testify to the fact that they were made.
    Appeal by the defendant, The Town of Salem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 11th day of May, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 7th day of May, 1897, denying this defendant’s motion for a new trial made upon the minutes.
    
      Frederick Fraser and J. M. Whitman, for the appellant.
    
      O. C. Van Kirk, for the respondent.
   Merwin, J.:

On the 12th of June, 1895, while the plaintiff with a team and wagon was crossing a bridge over Black creek, in the town of Salem, a portion of the bridge gave way, and the plaintiff, with his team and wagon, was precipitated to the bottom of the creek. For the injuries then received the plaintiff seeks in this action to recover damages from the town, upon 'the ground that the damages were sustained by reason of a defect in the bridge, existing because of the neglect of the commissioner- of highways of the town. (Highway Law [Laws of 1890, chap. 568], § 16.) The recovery is upon that basis.

The appellant claims that in the course of the trial divers errors were committed by the trial court to the prejudice of the appellant, by reason of which there should be a new trial..

The defendant offered to prove that, at' the time of the accident, the commissioner of highways had no funds in his hands applicable to the repair of the bridge, and that, for át least a month- before the accident,, all the moneys in his hands for highway purposes'had been expended in making repairs and' improvements which he had previously determined to be necessary. This was ruled out upon the ground that it was an affirmative defense, and was-not pleaded in the answer. In the complaint it was alleged that the commissioner- of highways had the necessary funds and the means to procure such funds, to repair the bridge. There was a general denial in the answer. It was, however, held that the proof was not admissible, and it is claimed that the case of Whitlock v. Town of Brighton (2 App. Div. 23) supports this ruling. The defendant asked leave to amend the answer, but this was refused. In order to make the defense as to funds complete, it must appear not only that there was a lack of funds, but an inability, by the exercise of reasonable diligence, to obtain them. (Clapper v. Town of Waterford, 131 N. Y. 389 ; Whitlock v. Town of Brighton, supra; Young v. Town of Macomb, 11 App. Div. 480.) Had the defendant offered to show not only the lack of funds, but the lack of means to obtain them, it may be that an amendment of the answer, if necessary, should have been allowed. The offer being too narrow, the defendant does hot show injury from the rulings. It may be observed that by the statute, as then existing (Highway Law, §10, as amended by chap. 606, Laws of 1895), it is provided that, if at any time a bridge shall become unsafe, the commissioners of highways of the town may, with the consent of the town board, cause the same to be immediately repaired, although - the expenditure of money required may. exceed the sum" raised for such purposes; and provision is made for the audit and collection of the expense.

It is claimed by the appellant that material error was committed in the exclusion of evidence offered by the defendant-by way of com tradiction of the evidence of Dr. C. B. Lambert, called as a witness by the plaintiff. Dr. Lambert was his attending physician.- " He testifies that he attended the plaintiff as his physician from June 12, 1895, the date of the injury, to January 16, 1896; that during that time he treated him for the injuries he.had received, gave him treatment as he thought was right, and that in his opinion his attendance during that time and up to January was necessary ; that after that he sent him medicine two or three times, and gave him some incidental treatment when he was attending a member of his‘family; that when he went to see him he found him suffering considerable pain from a number of injuries that he discovered on his back in the dorsal and lumbar region, and from injuries that he observed to the muscles of the whole chest and abdomen, and that his urine appeared bloody. On his cross-examination he stated the frequency of his visits and what injuries he treated him for. He was then asked whether upon a certain occasion in August, 1895, he did not state to Dr. Russell and Dr. Maguire that the plaintiff had recovered from the injuries which he had received by the fall of the bridge. To this the witness replied that he did not. He was also asked whether, on the same occasion, he did not state to the same persons that there was nothing the matter with the plaintiff. He replied, that he did not. The defendant then called Drs. Russell and Maguire and offered- to prove by them that- Dr. Lambert did make the statements which he denied making. This was excluded.

. One of the most material issues in the case whs whether or not the injuries of the plaintiff were of a permanent character. Dr. Lambert had better means of knowing the character and extent of those injuries than any other physician. His evidence tended to show that they were serious and permanent. His visits were frequent after August, 1895,. and he testified that his attendance up to January, 1896, was necessary. The condition of the plaintiff as described by the witness, -as well as his treatment of him, was inconsistent with the idea that on the ninth of August, the date- of -the interview with Drs. Russell and Maguire, the plaintiff had recovered, or that nothing was then the matter with him."

The contradictory evidence that was offered 1, we think, have been received. (Sloan v. N. Y. C. R. R. Co., 45 N. Y. 125 ; Kinner v. D. & H. C. Co., 20 J. & S., 162.)

In the Kinne-r case, Judge Sedgwick says at page 165, “ The rule that the declarations of a witness as to matters as to which he has testified, they being material-to the issues, can be shown to affect his credibility • after he has denied that he has made them, is not confined to the immediate things he testified to, but extends to circumstances within his.knowledge, or which it may be argued to the jury are.withi-n his knowledge,-inconsistent with the things he has testified to, "or which would call for a modification of the testimony.”

The evidence thus excluded was quite material to the issue and its exclusion is good ground for reversal. (Patchin v. Aston Mutual Ins. Co., 13 N. Y. 268.)

All concurred;. Herrick, J., concurred in result as stated in opinion read by him.

Herrick, J.:

I concur in the result of Mr. Justice Mebwin’s opinion, but decline to concur in the opinion itself, because I Jo not wish to commit myself to the inference that perhaps may be drawn from portions of it, that the lack of funds in the hands of a commissioner of' highways is a defense to an action of this kind.

The reasons for permitting such a defense by highway commissioners do not exist or apply to actions against a town.

Lack of funds in the hands of the commissioner was formerly a-defense to actions brought against commissioners of highways for defects in the highways or bridges under their control. The defense-was an affirmative one to be asserted and established by the commissioner. Actions against the commissioner were predicated upon his negligence, and, of course, if the town had neglected or refused to furnish him with the necessary moneys to keep, the highways, or bridges in repair, the imputation of negligence was rebutted.

While chapter 568 of the Laws of 1890 makes the town liable for the negligence of the highway commissioner, it does not grant to it the same defenses that a highway commissioner might theretofore assert in an action brought against him for his personal negligence. As before stated, lack of funds was an affirmative defense.

In such actions it was not necessary, in order to make out a case of negligence, for the plaintiff to establish the possession of funds by the highway commissioner. It was for the commissioner to affirmatively show tlie lack of funds, in order to relieve himself of the' charge of negligence otherwise made out' against him. The town of which he is an officer is the body that furnishes the commissioner funds to construct and maintain the highways and bridges within his jurisdiction.

To permit tlie town, in an action brought against it, because of the alleged negligence of the highway commissioner, to assert- as a defense a lack of moneys in his hands, is practically to permit such town to assert its own default or omission as a defense to the action.

By refusing to furnish the commissioner of highways the necessary funds to keep the roads and bridges under his control in proper repair, it would upon this theory escape all liability, and practically its own negligence would be its defense.

Judgment and order reversed and a new trial granted, costs to abide the event.  