
    John A. Getty, App’lt, v. The Town of Hamlin and The Town of Kendall, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Pleadings—Material allegations in complaint uncontroverted MUST, EOS PURPOSES OE ACTION, BE TAKEN AS TRUE—CODE ClV. PRO., §533.
    The material allegations of a complaint, not controverted in the answer, must, for the purposes of the action, he taken as true. Code Civ. Pro., § 523. Held, that where the complaint set forth allegations material to the cause of action, and a conclusion of law from these, the former not being controverted by the answer, a denial of the latter would not avail to let in evidence in contradiction cf the admissions thus made.
    3. Highways—Liability oe towns eor repairs oe road dividing them— 1 Rev. Stat., 501, Laws 1841, 'chap. 335, § 1, amended by Laws 1857, chap. 383, § 1.
    In an action, against two towns, for damages caused by defects in a bridge, the complaint alleged that the towns were divided or separated by a public highway; that across said highway was a creek, and over said creek a bridge for passage by those traveling on said highway, and lhat said bridge had been constructed and maintained for a number of years by said towns. Held, that these averments established not only a legal liability on the part of th towns to repair the bridge (1 Rev. Stat., 501, § 1, Laws 1841, chap. 335, § 1, amended by Laws 1857, chap. 383, § 1), but their recognition of that liability, and that being uncontroverted, they must be taken as true for the purposes of the action.
    8. Same—Evidence oe eünds necessary to repair, in hands oe commissioners.
    
      Held, that upon the question whether .the commissioners of one of the towns had funds or means necessary to make the repairs before the accident, evidence that shortly before one of the commissioners had procured materials for that purpose, and that the morning after the accident the commissioners made the repairs, was entitled to be submitted to the jury.
    4. Same—Lack of funds—Matter of defense.
    
      Held, that the lack of funds at the command of the commissioners of highways, wras a matter of defense, and that the burden of showing it "was on the defendant.
    Appeal from a judgment entered upon a non-suit ordered at the Monroe circuit, and from an order denying a motion for a new trial upon a case.
    
      J. D. Decker, for app’lt; J. M. Davy, for resp’ts.
   Smith, P. J.

—Action to recover for injuries received by plaintiff on the 26th April, 1884, by being thrown from his "wagon while driving upon a defective approach to a bridge on a highway running north and south between the towns of Hamlin and Kendall, known as the town line road. The highway is intersected by a stream called “Sandy Creek,” over which the bridge is erected, forming a part of the highway. The theory of the action is that the two defendant towns are jointly liable for the construction and maintenance of the bridge and its approaches, and that by the negligence of said towns and their respective commissioners of highways, the said approaches were suffered to be out of repair, whereby the injuries complained of were caused.

At the trial, when the plaintiff rested, a non-suit was granted as to the town of Kendall. The trial then proceeded as against the town of Hamlin, and at the close of the evidence a nonsuit was granted as to that town also. The grounds of the non-suit as to the town of Kendall were that there was no proof that the commissioner of that town had funds with which to repair, and that it appeared in evidence that owing to a defection in the line of the highway at or near the point where the bridge was built, the bridge was wholly in the town of Hamlin. After the non-suit was granted as to the town of Kendall, the defense gave evidence tending to show that although the bridge was solely in Hamlin, that part of the road in which it was situated had been allotted to Kendall, under the statute (1 R. S., 517,, § 75), to keep the same in repair, and on that ground, a nonsuit was granted as to Hamlin. Thus, it happened that the plaintiff after having made a case which would have authorized the jury to find that the injuries which he had sustained, resulted from defects in the approaches to the bridge, without negligence on his part, was turned out of court, not upon the ground that no liability was shown on the part of the defendants or either of them, but first, upon the motion of Kendall, on the ground that Hamlin was exclusively liable, and next, upon the-motion of Hamlin, on the ground that the liability rested upon Kendall alone.

That result was produced by what we regard as the erroneous admission of evidence offered by the defendants in contradiction of their admissions in the pleadings. The complaint alleged that “said towns are divided or separated by a public highway, commonly known as the county line road;” that across said highway is a creek; that over said creek is a bridge for passage by those traveling upon said highway; and that said bridge had been constructed and maintained for a number of years, last past, across said creek in said highway, by said towns. Those allegations were admitted by the answer of both _ defendants. The complaint also alleged that said towns are jointly liable to maintain said bridge and keep it in repair at their joint expense. That allegation was denied. The latter allegation was obviously a mere conclusion of law, and its denial did not operate to limit or qualify the admission of the facts previously alleged. One of those facts was that the highway, of which the bridge formed a part, divided the towns. But the defendants were permitted to prove in the face of their admission of that fact,'7 that a portion of such highway, including the bridge, did not divide the towns, but was wholly in Hamlin% ’ We regard that evidence, and the evidence of the allotment of the bridge to Kendall, as directly opposed to the admissions in the pleadings. The averments in the complaint, which were admitted in the answer, are, in substance, that the highway, including the bridge, was at all points upon the line between the towns, and that the bridge had been constructed by the two towns, and maintained by them for a number of years-next preceding the commencement of the action, or, at least, up to the time of the injury. From these facts, not only the liability of the two towns to repair, resulted as a legal conclusion, under the statutes and the adjudications of the courts applicable to the subject (1 R. S., 501, § 1; Laws 1841, chap. 225, § 1, as amended; Laws 1857, chap. 383, § 1; Lapham v. Rice, 55 N. Y., 472; Day v. Day, 94 N. Y., 153), but it, also, appeared conclusively that they had recognized such liability and acted upon it for several years.

The allegations referred to were material to the cause of action, and not having been controverted in the answer, the statute requires that they be taken to be true for the purposes of the action (Code, § 522). In accordance with the statute, it has been held that whatever has been admitted in the pleadings can not be contradicted in the subsequent pleadings, on the trial or in the verdict. Crosbie v. Leary, 6 Bosw., 312; Thomas v. Austin, 4 Barb., 265; Paige v. Willett, 38 N. Y., 28. And a judgment contrary to the admissions of the pleadings must be set aside. Bridge v. Payson, 5 Sandf., 210.

The evidence, in question, was objected to by the plaintiff’s counsel, on the ground that it contradicted the pleadings. Evidence that the bridge was in Hamlin, was first offered on the cross-examination of one of plaintiff’s witnesses, and it having been objected to on- the ground above stated, it was received, as the case states, as proper on cross-examination, but not to have the effect of contradicting any fact admitted by the pleadings. That it did have that effect, however, is apparent, if we are right in the view we have taken of the substance of the allegations in the complaint.

Upon the question whether the commissioners of Kendall had funds applicable to the reparation of the approaches to the bridge, we think there was evidence to go to the jury. There was proof that one of the comissioners had procured some materials to make the repairs shortly before the accident, and that on the morning after it occurred, the commissioners of both towns made the needed repairs. From that evidence, it was competent for the jury to infer that the commissioners had the requisite funds or means to repair before the accident happened, even if it was incumbent on the plaintiff to show that tire commissioners had funds or the power to obtain them. ^ But it has been held frequently that the lack of funds is matter of defense, and the burden of showing it is on the defendant. Bidwell v. Town, of Murray, 40 Hun, 190, and cases cited by Bradley, J., p. 196. The respondent’s counsel contends that unless a joint liability was shown the nonsuit was proper. Upon that question also, it is unnecessary to pass, and we do not decide it. For, as has been said, the facts admitted by the answer, in the view which we take of them, conclusively establish a joint liability.

Still another question, discussed by the trial judge in his opinion denying a new trial, we do not consider, and that is, whether it was competent for the two towns to allot to one of them the care of the bridge so as to relieve the other from responsibility to the public in respect to its condition. Day v. Day, supra.

In the present state of the pleadings, as we regard them, that question and the others which we have mentioned only to say that we give them no consideration, do not arise. For the error above pointed out a new trial must be ordered. It may be, that before another trial, the defendants may amend their answer, by leave of the court, so as to make the evidence admissible to which we have adverted. We can not anticipate the questions of law which may then arise, and any further discussion of the case at the present time would be premature.

The judgment and order should -be reversed and a new trial granted, costs to abide event.

Haight and Bradley, JJ., concur  