
    John B. McSherry, Resp’t, v. The Trustees of the Village of Canandaigua, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Villages—Negligence—Streets—Laws 1854, chap. 852.
    Under chap. 852, Laws 1854, the restrictions upon the powers of the trustees of the village of Canandaigua in relation to the streets, etc., of the village was removed and full powers given them in relation to the repair thereof, and the corporation, therefore, is liable for their negligence in respect thereto.
    
      S. Same—Notice of defects.
    Notice to the street commissioner of the village of defects in the streets or sidewalks is notice to the trustees.
    Appeal from a judgment in favor of the plaintiff, entered on' the verdict of a jury, at the circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.
    
      Edwin Hicks, for app’lts; Frank Rice, for resp’t
   Dwight, P. J.

The action was for alleged negligence on the part of the defendants in suffering a dangerous defect to exist in one of the sidewalks of the village of Canandaigua, in consequence of which the plaintiff sustained injuries. The defect consisted of a loosened grate on the level of the flagging which gave way under the plaintiff’s feet as he stepped upon it in passing. The exception chiefly argued was that taken by the defendants to the denial of their motion for a nonsuit, which was based upon the grounds: (1). That the charter of the village imposed upon the trustees no obligation to construct or repair sidewalks; (2). That the trustees had no notice of the defect complained of; and (3), that the injury was caused by the negligence of the plaintiff.

The village was originally incorporated in 1815 by a special act of the legislature, being chapter 254 of the Laws of that year, which contained no provision in respect to the construction, maintenance or repair of streets or sidewalks, except one empowering the trustees to make and publish “ prudential by-laws, rules and regulations * * * relative (among other subjects), to the streets, alleys and highways within said village, and draining, filling up, paving, keeping in order and improving the same.”

The charter remained unchanged in this respect until the passage of chap. 420 of the Laws of 1847. That act constituted- the village of Canandaigua a separate road district, exempted it from the jurisdiction of the commissioners and overseers of highways of the town of Canandaigua, except in respect to laying out, altering and discontinuing roads therein, provided that its trustees should, within its limits, possess the powers and perform the duties of commissioners and overseers of highways, except in the respect above mentioned, and only “ so far as such powers and duties are consistent with the provisions of this actand it very narrowly restricted those power’s and duties by prescribing the manner of raising and expending moneys of the village for highway purposes. In the same year the legislature enacted the first general law for the incorporation of villages, Laws 1847, chap. 426, and by its final sections provided for the adoption of any of its provisions by action of the electors of any village already incorporated, and the application thereafter of such provisions to such village. Accordingly, in June, 1848, the electors of Canandaigua duly adopted certain sections of the act of 1847, which thereupon became parts of its charter, and all provisions of previous statutes inconsistent therewith became nugatory in "respect to that village. Id., § 92. The sections thus adopted embraced all the essential provisions of the acts of 1847 in respect to streets and sidewalks, including that-cited and commented upon by the court in the case of Herrington v. The Village of Corning, 51 Barb., 396, decided by the former general term of this court in the seventh district in the year 1868. Among those provisions was one which limited the trustees in the exercise of the powers and duties of commissioners of highways in the same manner as they were limited' by the provisions of chapter 420, above quoted.

It was upon these particular and peculiar provisions of the general act of 1847 that the court distinguished the case of Herrington v. Corning from that of Conrad v. Ithaca, 16 N. Y., 158, and the large class of cases of a like nature, and upon which the village of Corning was held not liable in a case like the present.

But there was further special legislation on this subject in respect to the village of Canandaigua subsequent to the act of 1847, and prior to the occurrencewhichgaveri.se to this action. We refer especially to chap. 352 of the Laws of 1854. The first section of that act was in the following terms: “ The trustees of the village of Canandaigua shall be commissioners of highways in and for said village, and shall have all the powers of commissioners of highways, and as such they shall also have power to regulate, repair, improve and clean the streets, highways, alleys, lanes, public squares, bridges, sidewalks, crosswalks, drains and sewers in said village, and to prevent the encumbering of the same in manner, and to protect the same from encroachment and injury.” This legislation we regard as having an important bearing upon the main question involved in this case. Here was no longer the narrow restriction placed upon the powers of the trustees as commissioners of highways which marked the general act of 1847, chap. 420, nor those contained in the sections of the general act of that year, chap. 426, which became engrafted upon the charter of the village. On the contrary the act of 1854 created the trustees, absolutely, commissioners of highways, and gave to them all the powers of such commissioners, and, by specification, the power as such to repair the sidewalks of said village. This, we think, brought the case of Canandaigua within the doctrine of the case of Conrad v. Ithaca, and the numerous decisions which have followed it. The decision in the Conrad case was put expressly upon the ground that the trustees were commissioners of highways and, therefore, the corporation was liable for their negligence; and such has been the test of the liability of the trustees of villages ever since, and has been applied in a late case to the trustees of the village of Canandaigua itself, Colburn v. Canandaigua, 15 N. Y. State Rep., 668, in which case Bradley, J., mentions as the only basis of the judgment that “by the charter the trustees are commissioners of highways and are given the power to prohibit encumbering the sidewalks, etc.,” evidently referring to § 1 of the act last cited.

We have not overlooked the provision of § 3 of the same act, which continued to the trustees the “ power to give notice as now provided by law for taxes to be raised to cause crosswalks, sidewalks, etc., to be constructed * * * or repaired in said village; ” but we are not disposed to regard this provision as reimposing upon the trustees the limitations and restrictions in this respect contained in the previous statutes referred to. If such were the intention of the statute, what was the purpose of its enactment? If the trustees were to be in no larger sense commissioners of highways, nor to have any further power as such, than under the two acts of 1847, what was the purpose or propriety of the legislation of 1854 ? We think that by the latter act the village of Canandaigua was brought within the rule of liability established by the cases above referred to.

Upon the question of notice of the existence of the defect complained of, we find evidence which seems to be sufficient to charge the defendant. The evidence is substantially uncontradicted that the attention of one Homer Chase, who was known as street commissioner of the village, was called to the unsafe grate more than once some weeks before the accident. Neither the charter, nor, so far as appears, any by-law of the village directly provides for the appointment of such an officer, although the general act of 1847 recognizes the probable existence of such, § 57, subd. 11, and several ordinances of the village, in evidence, recognize his actual existence and prescribe certain duties for his performance. Homer Chase describes himself in his testimony as having been for nearly two years under the employ of the trustees of the village “ to superintend streets;” and testifies that his business in part is “to examine streets and sidewalks.” Moreover, we find in the record the formal admission by the defendant “ that Homer Chase was the street commissioner of the village of Canandaigua at the time of the accident to the plaintiff and had been since January 1, 1888.” All of which must establish the fact that the person named was in fact, if not by investiture of office, the street commissioner of the village, recognized as such by the trustees and charged with the duty, among others, of examining streets and sidewalks, not, we must assume, for his personal satisfaction, but for the information of the trustees. Such being the case, notice to him was unquestionably notice to the defendant. Childs v. The Village of West Troy, 23 Hun, 68; Deyoe v. Saratoga, 3 T. & C., 504., Rehberg v. City of New York, 91 N. Y., 137.

We think the question of the plaintiff’s contributory negligence was properly submitted to the jury, and that no other exception in the case was necessarily fatal to the verdict.

The judgment and order appealed from must be affirmed.

Macomber and Corlett, JJ., concur.  