
    John B. Kelly, Appellant, v. The Town of Verona, Respondent.
    
      Town—its liability for injury from, a defective highway — it is not limited to the delinquency of the commissioner at that time in office.
    
    In an action brought against a town under section 16 of the Highway Law (Laws of 1890, chap. 568), which provides that a town shall he liable for damages “sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town,” the plaintiff may prove, within reasonable limits, the delinquency of any commissioner of highways, and is not restricted to proof of the delinquency of the particular commissioner of highways in office at the time the damage occurred.
    Appeal by the plaintiff, J ohn B. Kelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 21st day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      D. F. Searle, for the appellant.
    
      Thomas S. Tones, for the respondent.
   Spuing, J.:

The plaintiff, with his two sisters, on September 30, 1901, was riding in a carriage drawn by one horse along a public highway in the defendant town when the horse, as it is claimed, broke through a hole in a defective bridge, tipping the carriage into the ditch and precipitating the plaintiff against the dashboard and injuring him.

The bridge was constructed of stone walls on either side, which supported stringers upon which planks were laid. Dirt and cinders entirely covered these planks to the depth of fifteen or twenty inches. The planks were about three feet above the bottom of the ditch.

The plaintiff’s proof tended to show that there was a hole through this bridge which had existed for some time and in which the horse stepped, breaking down the planks and causing the catastrophe. The planks immediately after the accident were found to be badly decayed.

The conduct of the plaintiff at the time and the alleged negligence of the highway commissioners were proper subjects for the consideration of the jury, and we would not interfere with the verdict except for an error which we deem too material to be overlooked.

J ohn King was the commissioner of highways in office at the time of the accident. His predecessor, Jurden, had held the office for two years prior to March, 1901. He testified that he inspected this bridge in the summer of 1900, and described the manner of doing it. The jury might have found from the evidence that the bridge was defective and unsafe during the term of this commissioner, and that he ought to have known of its unsafe condition, and that his inspection, which he testified to, was insufficient.

The court charged the jury that they were only to take into consideration the negligence of the commissioner in office at the time of the accident, and that they could not consider the question of any negligence of the prior commissioner Jurden,” to which the plaintiff’s counsel excepted and also requested a specific charge to the contrary, which was denied.

The town is liable for damages “ sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.” (Highway Law [Laws of 1890, chap. 568], § 16.) To establish the negligence of the town the plaintiff may prove, within reasonable limits, the delinquency of any commissioner of highways. (Allen v. Town of Allen, 33 App. Div. 463; Spencer v. Town of Sardinia, 42 id. 472; Shaw v. Town of Potsdam, 11 id. 508.)

In Allen v. Town of Allen (supra) the trial court, at the request of the plaintiff, had refused to charge that if the defect complained of existed during the term of the commissioner preceding the accident that would be adequate notice to the defendant. This court granted a new trial to the plaintiff for this error, saying (at p. 464): “Notice to a commissioner of highways is notice to the town in cases of injury resulting from defective highways and bridges; and it is not necessary that the notice should have been received by the commissioner in office at the time of the injury complained of. It is sufficient if the defect had existed during the term of office of a prior commissioner. It is the commissioner who receives the notice and not the individual.”

These cases are controlling upon us and require a reversal of the judgment.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  