
    F. Leonard Burchard et al., as Executors of Horatio P. Ball, Deceased, Appellants, v. John B. Payne, as Agent Appointed by the President under Section 206 of the Transportation Act, Respondent.
    
      Negligence — railroads — highways — bridges —■ death through automobile running against barrier on highway bridge and breaking through plunging to track beneath — railroad not liable for defect in barrier in absence of notice by superintendent of highways to repair.
    
    
      Burchard v. Payne, 197 App. Div. 829, affirmed.
    (Argued May 10, 1922;
    decided May 31, 1922.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 12, 1921, reversing a judgment in favor of plaintiffs entered upon a verdict and granting a new trial in an action to recover for the death of plaintiffs’ testator alleged to have been occasioned through the negligence of defendant. Testator was killed when an automobile in which he was riding with others ran off a bridge erected by the Albany and Susquehanna railroad to carry the highway over its tracks in the town of Duanesburgh, and since altered and maintained by its successor Delaware and Hudson Company, this railroad being in the control of the Federal government at the time of the accident. The accident is claimed to have been due to the fact that the automobile came upon this bridge by way of a reverse curve in such a manner that it came in contact with one of the barriers. The Appellate Division held that the barriers upon this bridge constituted a part of the lawful roadway within the jurisdiction of the commissioner of highways, as distinguished from the framework of the bridge and its abutments, and that it was necessary, under the law, that the railroad company should have had notice from the town superintendent of highways of the defect complained of in order to charge it with liability to the plaintiffs in this action.
    
      Arthur W. Morse for appellants.
    
      Lewis E. Carr for respondent.
   Order affirmed and -judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Found and McLaughlin, JJ. Dissenting: Crane and Andrews, JJ.  