
    Town of Palatine and Others, Respondents, v. The Canajoharie Water Supply Company and Joseph M. Johnson, Appellants.
    Tarty— an action for an injury to a town bridge should be brought in the name of the town—the commissioners of highway should not be joined as parties plaintiffs — demurrer which sufficiently alleges a misjoinder of parties plaintiff.
    
    Under chapter 7 of the Laws of 1889, relating to the bridge ¡across the Mohawk river connecting the village of Canajoharie in the town of Canajoharie with the village of Palatine Bridge in the town of Palatine, which provides,' “hereafter the said free bridge and the approaches thereto shall be under the control and direction of the commissioners of highways of the towns of Canajoharie and Palatine, * * * and the costs and expenses of maintaining said bridge and approaches and keeping the same in repair shall be borne equally by said towns of Canajoharie and Palatine,” an action to restrain the alleged unlawful laying of water pipes upon such bridge and to recover ¡damages, alleged to have resulted therefrom, should be brought in the names of the two towns and it is improper to join with them, as parties plaintiff, the highway commissioners of said towns.
    The following demurrer served in such an action, “ The defendants demur to the complaint of the plaintiffs herein and allege as the ground of their demurrer that there is a misjoinder of parties plaintiff. That neither Henry C. Miller, as Commissioner of Highways of the Town of Canajoharie, Montgomery County, y. Y., John H. Yan Wie, Adam A. Saltsman or Charles Bauder as Commissioners of Highways of the Town of Palatine, Montgomery County, y. Y., should have been a party plaintiff; neither one has any legal capacity • to sue,” if regarded as a demurrer upon two grounds, viz., First, that there is a misjoinder of parties plaintiff; and second, that the plaintiffs, who are commissioners of highways, have not legal capacity to sue, should be overruled, as section 490 of the Code of Civil Procedure provides that a demurrer upon either of these grounds "must point out specifically the particular defect relied upon.”
    If, however, the demurrer be viewed as stating but one ground of demurrer, viz., that there was a misjoinder of parties plaintiff in that neither of the highway commissioners named should have been a party plaintiff, as neither of them had any legal capacity to sue upon the cause of action stated in the complaint, there would be a sufficient compliance with the provision of the Code requiring the defect relied upon to be pointed out.
    Smith and Houghton, JJ., dissented.
    • Appeal by the defendants, The Canajoharie Water Supply Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 24th day of June; 1903, upon the decision of the court, rendered after a trial at the Fulton Special Term, overruling the defendants’ demurrer to the plaintiffs’ complaint.
    The cause of action stated in the complaint is one to restrain the defendants from unlawfully laying water pipes upon and over a highway bridge across the Mohawk river, which is the boundary line between the towns of Palatine and Canajoharie, and for damages to said bridge and its approaches by reason of laying said pipes thereon. There were joined as plaintiffs each of said towns and the commissioners of highways of such towns. It is alleged in the complaint that “ the plaintiffs commissioners are given the control of said bridge and the approaches thereto by virtue pf Chapter 7 of the Laws of 1889.”
    The demurrer interposed is as follows : “ The defendants demur to the complaint of the plaintiffs herein and allege as the ground of . their demurrer that there is a misjoinder of parties plaintiff. That neither Henry 0. Miller, as Commissioner of Highways of the Town of Canajoharie, Montgomery County, N. Y., John H. Yan Wie, Adam A. Saltsman or Charles Bander as Commissioners of Highways of the Town of Palatine, Montgomery County, N. Y., should have been a party plaintiff; neither one has any legal capacity to sue.” From the judgment overruling this demurrer the defendants have appealed.
    
      Andrew J. Nellis, for the appellants.
    
      Henry V. Borst, for the respondents.
   Chester, J. :

If the demurrer herein is to be regarded as one upon two grounds, viz.:. First, that there is a misjoinder, of parties plaintiff; and. second, that the plaintiffs, who are commissioners of highways- have not legal capacity to sue; it is evident that the demurrer was properly overruled, because the Code requires that a demurrer on either of these grounds “must point out specifically the particular defect relied upon ” (Code Civ. Proc. § 490), and that has not been done in this demurrer, unless the statement as to the first ground, that neither of the commissioners should have been a party, amounts to a compliance with that requirement.

. The appellants insist, however, that there is but one ground of demurrer alleged and that is a misjoinder of parties plaintiff, and that the demurrer specifically points out the particular defect relied upon where it states that neither of the commissioners named should have been a party plaintiff, as neither of them has any legal capacity to sue; that is, as is claimed, no legal capacity to sue for the cause of action stated in this complaint. Viewed in that light it would appear that there has been a sufficient compliance with the provision' requiring the defect, relied upon to be pointed out to raise the question of a misjoinder of parties plaintiff. The defect is that under the law these commissioners have no right to sue in their names as commissioners for the cause of action stated in the complaint, and, therefore, they should not have been joined vdth their respective towns as plaintiffs, and that having been so joined there is a misjoinder of parties plaintiff. When the allegation of want of capacity is regarded as a reason for the misjoinder and not as a separate ground of demurrer, the pleading as a whole is sufficiently specific, we think, in pointing out the particular defect relied tipon to require us to consider the question of misjoinder on its merits.

It is alleged in the complaint that the plaintiffs commissioners are given control of the bridge in question and- the approaches thereto by virtue of chapter 7 of the Laws of 1889. , That act was an amendment to section 3 of chapter 280 of the Laws of 1867, and "the last-named act was one to amend chapter 143 of the Laws of 1859, entitled “An act for a free bridge over the Mohawk river.” The amendment of 1889 provided that “hereafter the said free bridge and the approaches thereto, shall be under the control and direction of the commissioners of highways of the towns of Canajoharie and Palatine, * * * and the costs and expenses of maintaining said bridge and approaches and keeping the same in repair shall be borne equally by said towns of Canajoharie and Palatine.” Prior to that amendment, as a reference to the legislation referred to shows, the bridge had been in control of the trustees of the villages of Canajoharie and Palatine Bridge. The former village is at one end of the bridge in the town of Canajoharie, and the latter village is at the other end of the bridge in the town of Palatine. Prior to the amendment, as well as afterwards, the expenses of maintaining the bridge and approaches- and keeping the same in repair were borne by the towns of Palatine and Canajoharie. It is clear that the only purpose and effect of the amendment of 1889 was to take the control of the bridge in question from the trustees of the two villages respectively and to place such control in the commissioners of highways of the respective towns of Canajoharie and Palatine. The bridge formed a part of the highway between these two towns.

Among the general powers of highway commissioners in towns under the Highway Law (Laws of 1890, chap. 568) is to “ have the care and superintendence of the highways and bridges therein.” (§ 4.) That law also provides that “ when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.” (§ 130, as amd. by Laws of 1902) chap. 321.) The words “ control and direction ” in the amendment of 1889 to the local, law have, I think, no broader significance with reference to the duties and powers of the commissioners of highways of the two towns in question than have the words “ care and superintendence ” in section 4 of the Highway Law with reference to the duties and powers of commissioners of highways in the towns of the State. In either case the commissioners of highways are officers or agents of the towns, charged with the duties and clothed with the power specified under these laws, and the commissioners who are plaintiffs were vested by the amendment of 1889 to the local law only with like powers and duties as were conferred by the general law upon commissioners of highways with respect to highways and bridges in towns. The bridge in question was maintained by the two towns at their joint expense, and the plaintiff commissioners, as officers of these towns respectively, were simply their agents under the law in the control and direction thereof, and any suit which they were required to bring with relation to an enroachment upon the bridge should, therefore, be brought in the same way as any suit in relation to highways under the care and superintendence of commissioners of highways.

A town, is now a municipal corporation (Town Law [Laws of 1890, chap. 569], § 2), and the Town Law (§ 182) provides that actions or special proceedings for the benefit of a town,- including an action to recover damages for injury to the property or rights of a town, shall be in the ñame of the town. More than this, the-Highway Law in section 15, in relation to actions for injuries to highways, provides that the commissioners of highways may bring an action in the name of the town against any person or corporation to sustain the rights of the public in and to any highway in the' town,-and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto.”

Regardless of what the law formerly was which permitted commissioners of highways to prosecute certain actions in their own name of office, the cause of action stated in this complaint can, as the law now stands, only be prosecuted by the commissioners of highways in the name of the towns of which they are officers. That an action to recover damages for the destruction of a bridge was properly brought in the name of the town was decided by this court in Town of Fort Covington v. U. S. & C. R. R. Co. (8 App.Div. 223) and which decision was affirmed in the Court of Appeals (156 N. Y. 702).

The judgment overruling the demurrer should be reversed, with costs, and the demurrer sustained, with costs.

All concurred, except Smith and Houghton, JJ., dissenting.

Interlocutory judgment reversed, with costs, and the demurrer sustained, with costs.  