
    THE VILLAGE OF FULTON, Appellant, v. JEANETTE P. TUCKER, Respondent.
    
      Sidewalk—duty of adjacent owner as to — liability of to persons injured, by failwi’e to. keep in repair.
    
    When a person is injured, in consequence of a sidewalk being out of repair, no action can be maintained against the owner of the adjacent premises, to recover damages therefor, unless the duty of keeping the sidewalk in repair has been imposed upon such owner by some statute or contract. Sidewalks are a part of the highway, and the owner of the adjoining land has no greater duty in regard to keeping them in repair, than he has in regard to any other part of the highway.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    
      This action was brought to recover the sum of money which the plaintiff had been compelled to pay to one Mary Carr, for injuries received by her, by reason of a defect in the sidewalk in front of the premises owned by the defendant. The plaintiff was incorporated by chapter 176 of the Laws of 1835, as amended by chapter 33 of the Laws of 1862. •
    The plaintiff and her husband resided in the premises in front of which the accident occurred, which were situated on the west side of Second street, in the said village of Fulton, and in front of which a plank sidewalk had, for many years, been built and maintained by the owners and occupants of the adjoining property, under the direction of the board of trustees of the village. During the year 1870, the sidewalk in front of and adjoining the defendant’s premises became out of repair, of which the defendant had knowledge. On the 14tli of October, 1870, the board of trustees passed an ordinance of which the following is a copy, and caused a notice of its passage to be' left at the residence of the defendant.
    
      “ Be it ordained, That the sidewalks on both sides of Second street, from Cayuga street to Broadway, be repaired and relaid with sound hemlock plank two inches thick or with pine plank one and one-quarter inches thick, said walk to be six feet in width, the whole to be well graded and completed under the direction of the street commissioner, within ten days from the passage of this ordinance.”
    The defendant did not repair or relay said sidewalk; and, on the 3d day of December, 1870, one Mary Carr, a resident of said village, while passing over the same, without any fault or negligence on her part, but owing entirely to the omission to keep in repair the sidewalk, was thrown down, her wrist was fractured, and she was otherwise greatly injured. Subsequently Mary Carr commenced an action against the plaintiff to recover damages for the injuries sustained by her; and recovered judgment thereon for $313.18 damages and costs, which judgment was subsequently paid by the plaintiff.
    
      E. 8. Pardee, for the appellant.
    
      8. W. Pader, for the respondent.
   Taloott, J.:

This action was commenced to charge the defendant with the amount of a recovery which had been had against the plaintiff, in an action against it for' negligence, in suffering a sidewalk to be out of repair, by means whereof a party had sustained an injury. The theory of the plaintiff’s claim for indemnity, is, that the defendant, as the owner and occupant of the premises adjoining the sidewalk in question, is primarily -liable. The referee has dismissed the plaintiff’s complaint,' upon the ground that the defendant is not liable to indemnify the plaintiff. We think the referee has decided correctly. We know of no principle upon which an action of this character can be maintained, unless the duty of keeping the sidewalk in repair has been imposed upon the adjoining owner by some statute or contract. Certainly no such duty is imposed by the common law. Whether the easement enjoyed by the public has been bestowed by the owner voluntarily, or has been taken from him by proceedings in invit/um, the extent of the right which the municipal power acquires, in the absence of express contract or legislation, imposing the duty of keeping a highway in repair, is simply to the enjoyment of the easement. It is true, the authority is usually conferred upon the municipality to assess the expense of the improvement upon adjoining lands. This does not impose the duty of making the repairs and improvements primarily on such owner. On the contrary, the village authorities in this case are the parties primarily liable to the duty of making the repairs. The provisions of the charter, under which the trustees of the village passed the ordinance to repair the sidewalks on Second street, whereby the owner of the adjoining premises is authorized, within a specified time, to make the repairs at his own expense, simply confer upon such owner the authority, which otherwise, it being a public highway, he would not have, to do the work and thereby save an assessment on his premises. But whether the owner will avail himself of this privilege, is optional with him.

It may be conceded that where a party is bound to make certain repairs by contract, or where he himself has created a nuisance in a public highway, there he is primarily liable. And in case the municipality has been compelled to pay damages in such a case, it would have a remedy over against the party primarily liable. Id such case, the party injured has his option to proceed by action against the town or the author of the nuisance. The cases cited by the plaintiff’s counsel may all be referred to the rule, that the party sued as liable to indemnify the municipal corporation, was either bound by contract to do the thing, the omission to do which occasioned the injury, or had himself created the nuisance by which such injury was occasioned. The case of Haskell v. The Village of Penn Yan, did not involve any such question, and the discussion of it was expressly waived, in that case, as wholly immaterial.

Sidewalks are, as has repeatedly been held, a part of the highway. The owner of adjoining territory has no greater duty in regard to keeping sidewalks in repair, than he has in regard to other parts of the highway. The village has a mode pointed out, by which it may be indemnified for the expense of repairs upon its highways; and the method pointed out is to be pursued for that purpose. If it suffers its highways to become out of repair, whereby any person has- sustained an injury, for which damages have been recovered against the village, its remedy is upon its contract; or, in case the injury has resulted from any act done by a third party, in the nature of creating a nuisance or obstruction, such party is liable to indemnify the village, upon the principle of the common law.

The judgment must be affirmed upon the opinion of the referee.

Present — Mullin’, P. J., Talcott and Smith, JJ.

Judgment affirmed. 
      
       Angell on Highways, §§ 298, 300.
     
      
       5 Lans., 43.
     
      
       Wharton on Negligence, § 292.
     
      
       Angell on Highways, § 298.
     