
    Sarah A. Booth, Appellant, v. Town of Orleans, Respondent.
    Fourth Department,
    November 15, 1911.
    Highways— negligence —act of overseer — liability of town for injuries caused by defective highway.
    A town is not liable foi* injuries caused by defective highways in the absence of statutory provision therefor.
    Under the statute a town is hable only for the negligence of the highway commissioner, now known as town superintendent.
    Where the plaintiff’s horse ran away and injured her owing to the fact that it became frightened by the smell’ left by powder which had been used by the overseer of the road district in blasting'rock from the roadbed and by seeing a pile of' stones left in the highway by the overseer, the town is not hable if it do not appear that the work was done under the direction of the highway commissioner, or that he knew that it was going on, or of the existing condition, or that by the exercise of reasonable diligence he could have known of the condition.
    Appeal by the plaintiff, Sarah A. Booth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the, county of Jefferson on the 14th day of March, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Jefferson Trial Term, and also from an order entered in said clerk’s office on the 7th day of March, 1910, directing the dismissal of the complaint.
    
      
      N. F. Breen and Nathaniel M. Smith, for the appellant.
    
      Wayland F. Ford, for the respondent.
   Kruse, J.:

The action is for negligence. The plaintiff was riding, in a buggy, driving .a single horse along a country road, and was hurt because the road was defective. The accident occurred in this way: The overseer of the road district in which the accident occurred had been blasting rock out of the road. He had quit his work for the day, leaving a hole in the road, and piles of broken stone along the side of the road. The plaintiff did not drive into the hole or against the rock pile, but her horse*smelled the powder and saw the hole and pile of stones, and became frightened, ran away, overturning the buggy, and hurt the plaintiff.

On behalf of the plaintiff it is claimed that the negligence of the overseer is imputable to the highway commissioner. But I think the evidence is insufficient to show that the work was done under his direction. Neither was it shown that he knew of the work which was going on, or of the condition of the road, or that in the exercise of reasonable vigilance he could •have known of it.

It is contended, however, that even if the negligence of the overseer is not imputable to the commissioner of highways, the town is liable for the negligence of the overseer. I think not. In the absence of’ the statute, the town is not liable at all for defective highways. It was not until 1881 that towns were made liable for defective highways (Laws of 1881, chap. 700), and then only because of the neglect of the commissioner of highways of the town, with a right of recovery by- the town over against the commissioner. That, in substance, is the law now. (Highway Law, §§ 74, 75.) It has never been extended so as to make the town liable for the negligence of the overseer or any other town officers having to do with the highways, directly or indirectly, save that of highway commissioner, or town superintendent, as he is now called. (Highway Law, §74.) ’ . ’

Hr. Justice Andrews, in his opinion setting aside the verdict upon the first trial (Booth v. Town of Orleans, 66 Misc. Rep. 339), has so fully discussed the question, calling attention to the cases, that I think further discussion is unnecessary.

I think the judgment and order should he affirmed.

All concurred.

Judgment and order affirmed, with costs.  