
    August Reiss, Appellant and Respondent, v. Town of Pelham, Respondent and Appellant. Charles Weber, Appellant and Respondent, v. Town of Pelham, Respondent and Appellant.
    
      Negligence—action of a, milage in widening a street which renders a town bridge dangerous— the milage, not the town, is liable for injuries caused thereby.
    
    In an action brought against the town of Pelham to recover damages for injuries alleged to have been sustained by the plaintiff—• whose horse, while traveling along a highway in that town at night, came into violent contact with the handrail of a bridge spanning a stream, the center of which was the boundary line between the village of Pelham and the city of Mount Vernon, and was also the boundary line of the town of Pelham — it appeared that the village authorities had widened the street, which had been theretofore of the same width as the bridge and formed with it a continuous highway, leaving the handrail of the bridge which caused the accident extending over and along the street a distance of about, five feet; that the bridge had no structural approach, the street being carried to the edge of the bridge planking.
    It was not claimed that any defect existed in the bridge itself.
    
      Held, that the widening of the village street caused the accident, and that the town was not chargeable with negligence;
    That it was the duty of the village rather than of the town authorities, by some appropriate safeguard, to correct the unsafe approach to the bridge.
    Appeal by August Reiss and by Charles Weber, respectively, the plaintiffs in the above-entitled actions, in each case, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of October, 1899, upon the verdict of a jury, and also from an order in each case entered in said clerk’s office on the 18th day of October, 1899, denying his motion for a new trial made upon the minutes.
    Also an appeal by the Town of Pelham, the defendant in each of the above-entitled actions, from an order of the Supreme Court, made therein at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of February, 1900, setting aside the verdict therein, and granting the motion of the plaintiff therein for a new trial on the ground of newly-discovered evidence.
    
      George G. Appell, for the plaintiffs.
    
      Henry G. K. Heath, for the defendant.
   Hiksci-ibekg, J.:

The cases were tried together, and the appeals have been argued together upon a single record. The plaintiffs claim to have been injured in September, 1898, wdiile driving at night upon Third street in the village of Pelham, in Westchester county, their horse coming-in violent contact with the edge of the side or handrail of a bridge which spans a small stream called the Hutchinson river. This stream appears to be the dividing boundary between the village of Pelham and the city of Mount Vernon. So far as concerns this boundary line, the village of Pelham and the defendant, the town of Pelham, are territorially identical, each municipality being bounded in that direction by the center of the river. The bridge is half in the village of Pelham and half in the city of Mount Vernon. Third street as originally laid out was of the same width as the bridge, and in the month of March, 1898, the street and bridge formed a safe, continuous highway. In that month, however, the village authorities concluded to widen the street, and the work of such improvement was given to a contractor, by whom it was probably completed at the time of the accident, although not actually accepted by the village until October, one month afterwards. The result of the widening of the street was to leave the bridge in the middle of it, and the accident complained of appears to have resulted from this fact alone, and not from any defect or lack of repair in the bridge itself, excepting such as may have been occasioned by the acts of the village or its contractor. The bridge was built without any structural approaches other than the village and city’streets respectively, the improvement in the street being carried up to the edge of the bridge planking, and the handrail referred to being left by the village contractor extending over and along the street a distance of about five feet. The verdict was in favor of the defendant. Among other defenses the defendant asserted the absence of funds in the possession of, or available to, the commissioner of highways of the town, and, after the rendition of the verdict, the learned trial justice set it aside as to each case and ordered a new trial on the ground of newly-discovered evidence relating to the possession, or availability, of funds by the commissioner of highways. In this exercise of discretion we find no error, and the orders should be affirmed, unless the facts disclose a condition which negatives the existence of legal liability for the accident on the part of the defendant. After a thorough examination of the evidence and the authorities cited by the plaintiffs, we have reached the conclusion, however, that the dangerous condition of the highway in the village of Pelham where the accident occurred was due to the fact that the widening of the village street rendered the very existence of the bridge a menace which of itself did the mischief, and that the accident, therefore, was not due in any degree to negligence-with which the defendant is legally chargeable. There was no defect in the bridge itself, regarded as an independent structure. It was properly constructed as an independent and safe means of crossing the stream, and was of the width of the highways approaching it in either direction, and when the village authorities saw fit to widen the village street they deliberately left the bridge, as lawfully and safely constructed, a dangerous obstruction to travel, in view of the new and changed condition, which it was their duty to mitigate by some appropriate safeguard, rather than the duty of the town authorities, who had no control over the village improvement, and no authority to guide or direct its accomplishment in any respect, The case is no different in principle than it would have been had the street been so far widened that the plaintiffs could have driven by the bridge altogether and so into the stream. The proximate cause of the accident was the negligence of the village, not of the town. The accident happened primarily, not because of the failure of the commissioner of highways to do his duty in any respect within his official jurisdiction, but because of the fact that a safe bridge, constructed and maintained in a safe condition by him or by his predecessors, had been converted by the village into an unsafe obstruction on the village highway. The injuries complained of resulted from an act of commission, and not from any act of omission, and the act of commission was committed by a municipal government other than the defendant, and which act the defendant was legally powerless to prevent, and which it was without authority to supervise and direct. The gist of the complaint is the existence of a dangerous obstruction to the village highway, and no charge is made of any defect in the bridge itself. As has been said, there was no defect in the bridge except such as related to the condition .and character of the village street, and which rendered travel on that street dangerous because there was a lawful and safe bridge across the stream, but which the village authorities had rendered unsafe when approaching it in the night, because they had widened the highway leading to it beyond the width of the bridge. We are referred to no case which holds that one municipality may be held responsible in this way for the damages occasioned by the negligent acts of another having jurisdiction in the subject-matter, and we, therefore, conclude that in the absence of evidence showing the existence of the condition complained of for a sufficient length of time to charge the town through its commissioner of highways with constructive notice, so that independent negligence may be attributed to it, it cannot be held in law to respond in damages for the affirmative negligent act of the village.

The order granting a new tidal on newly-discovered evidence should be reversed and judgment affirmed in each case, with one bill of costs.

All concurred.

Order granting new trial on newly-discovered evidence reversed and judgment affirmed in each case, with costs.  