
    George C. Dye, Plaintiff, v. Town of Cherry Creek, Defendant.
    (Supreme Court, Chautauqua Trial Term,
    October, 1914.)
    Highways — when action for damages against town by reason of defect in highway or bridges maintained — filing of verified statement with town clerk — Highway Law, § 74.
    An action against a town for damages to persons or property sustained by reason of any defect in its highway or bridges existing because of the neglect of the town superintendent of highways can be maintained only by virtue of section 74 of the Highway Law; but where the complaint, otherwise good, contains no allegation that a verified statement of the cause of action was filed with the town clerk within six months after the cause of action accrued, as required by said section, the complaint must be dismissed, with leave to serve an amended complaint on payment of a full bill of costs.
    Motion by defendant for judgment on the pleadings.
    L. L. Thrasher, for motion.
    Richard A. Hall, opposed.
   Pound, J.

The complaint alleges that defendant is one of the towns of Chautauqua county; that plaintiff has the use of certain improved lands therein; that along the westerly end of plaintiff’s lands is a highway which is crossed by a creek; that across the stream was a bridge; that the opening under the bridge was ample to carry the waters of the creek; that1‘ heretofore and on or about three years ago the defendant through its officers, agents and servants caused the removal of said bridge and erected in place, thereof a culvert; ’ ’ that the culvert is insufficient to carry the waters of the creek; that the waters thereof overflow across the highway and onto plaintiff’s lands to his damage; that such damage is caused solely through the negligence, mismanagement, misconstruction, carelessness and wrongful acts of said defendant.” Defendant moves to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action against the town.

Section 74 of the Highway Law reads as follows:

“ § 74. Liability of town for defective highways. Every town shall be liable for all damages to persons or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any town superintendent of such town. No action shall be maintained against any town to recover such damages, unless a verified statement of the cause of action, including the time and place at which such injury is alleged to have been received, shall have been filed with the town clerk 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.”

The action can be maintained only by virtue of this statute, and the first question is whether the complaint states facts showing (a) a defective highway, (b) existing because of the neglect of the town superintendent. Lane v. Town of Hancock, 142 N. Y. 510.

Defendant urges that the town is not liable because the statute was intended to cover no such liability as arises from the flooding of lands by the construction of inadequate culverts, but only such liability as results from defects in the highway, interfering with travel along the same, and it relies chiefly on Winchell v. Town of Camillus, 109 App. Div. 341, affirmed without opinion in 190 N. Y. 536. That was an action to recover damages for negligence in permitting a sluice-way across a highway under the traveled part thereof to become filled up so as to set back surface water accustomed to flow through the same upon the plaintiff’s premises. By a divided court it was held primarily that the failure of the commissioner to remove the rubbish from the sluice so that the water could pass through did not constitute negligence for which an action could be maintained against him, and that, therefore, the town was not liable. Williams, J., also says that the statute applies only to defects in the highway “ interfering with travel along the same.”

The case of Barber v. Town of New Scotland, 88 Hun, 522, cited in the principal case, was based on a failure of the commissioner to repair and enlarge an old culvert, built many years before, by a stock company. In the opinion, Herrick, J., says: “ This is not a case where, by the building of a drain or sluiceway, waters have been concentrated together and cast upon the plaintiff’s premises.”

Neither of these cases, or any other case, seems necessarily to hold that the town cannot be charged unless the traveled surface of the highway is actually obstructed or interfered with.

The occasional dictum that the term “ defective highways ” was used in the- statute solely “ in reference to their condition for public travel upon them ” seems to have originated in Whitney v. Town of Ticonderoga, 127 N. Y. 40, which is cited as authority for such proposition in the Barber case, supra. In that case it was contended by the town that the negligence of the commissioner in leaving a road scraper in the highway did not create a “ defective highway ” for which the town was liable under the statute, because the surface of the highway remained undisturbed. It was held (p. 44) merely that “ the impairment of a highway for- public use may be no less such by an obstruction placed in it than by a physical disturbance or injury to the bed of the roadway.” Obviously, this authority widens rather than narrows the construction of the statute so as to impose liability upon the town for the negligence of the commissioner rather than to curtail such liability, and is wholly inapplicable to the case at bar.

In Ashberry v. Town of West Seneca, 33 N. Y. St. Repr. 431, the town was held liable for the negligent act of the commissioner in obstructing a ditch and culvert so as to discharge waters on plaintiff’s land. This case has never been discredited and is not discussed in any of the eases involving negligent acts of omission or acts discretionary in their nature, presumably because a different principle is involved.

Plaintiff’s complaint alleges a culvert, defective because insufficient, negligently so constructed by the town officers, presumably including the town superintendent of highways, as to divert a watercourse upon plaintiff’s land. I think that to this extent he states a cause of action. The statute says any defect ” and plainly a defect is alleged. The complaint must, however, be dismissed because it contains no averment that a verified statement of the cause of action was filed with the town clerk within six months after the cause of action accrued, as required by the statute. This is a fatal omission. Olmstead v. Town of Pound Ridge, 71 Hun, 25.

Judgment for defendant accordingly, with costs, but plaintiff may serve an amended complaint on payment of a full bill of costs within ten days after service of order and notice of entry thereof.

Judgment accordingly.  