
    Isabella McCormick, Resp’t, v. The City of Amsterdam, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    1. Municipal corporations—Negligence—Streets.
    Municipal authorities may by their action treat and' adopt a highway-made by private persons as a public street, and hence become responsible-for its condition without any formal acceptance.
    2. Same.
    The charter of the defendant provided that it should cause a map of the; streets and highways to be made and designate thereon such streets and. highways which, in their judgment, could not be'put in proper conditions for general travel without too great expense, and that they should not be liable for accidents or injuries caused by the defective condition of streets- or highways so designated. Held, that if the city desired to escape responsibility for a street which was a highway prior to its incorporation it should comply with the requirements of the act, and that the burden was. upon it to show that it had done so.
    Appeal from judgment in favor of plaintiff entered upon the-report of a referee.
    Action to recover damages sustained by plaintiff by reason of a fall upon the sidewalk of John street, in the city of Amsterdam.
    
      Louis H. Reynolds, for app’lt; A. B. Flansburgh, for resp’t.
   Herrick, J.

The principle question discussed upon this appeal was as to whether the place called John street in the city of Amsterdam is a public street over which the defendant had custody and control, and for whose condition it is responsible.

The testimony shows that it was at the time of the accident-which is the foundation of this action, and had been for more than twenty years prior thereto, a highway used by vehicles and foot passengers to pass and repass; that it had a well defined roadway and foot path, or sidewalk; that a sewer had been laid through it,, also a water main; that it was lighted by lamps for which the city paid; that work had been done upon it which the city paid for; that in the neighborhood of one hundred people resided upon it;, it was used in every way in which a public street can be used and it seems to me that within the cases of Saulsbury v. Ithaca, 94 N. Y., 27; Pomfrey v. Saratoga Springs, 104 id., 459; 5 St. Rep., 802, it must be held to be a street for which the defendant-is responsible. I do not go so far as to hold that private persons-may lay out a highway through their property and by using it as-a highway and permitting others to so use it they can compel a municipality to become responsible for it as a public street; but the municipal authorities may by their action treat it and adopt, it as a public street, and hence become responsible for its condition without any formal acceptance.

It also seems to me that the defendant is responsible for the-highway in question for reasons not referred to or within the scope of the cases hereinbefore cited. The place in question had been used for highway purposes for more than twenty years prior to the happening of the accident, which was in March, 1888. In April, 1885, the defendant was for the first time incorporated as a city; within its boundaries was the place in question which had been so used as a highway as before stated, and the defendant: through its common council was given the care and custody of the highways within the city.

The act of incorporation also provided as follows : “ Section 88. The said common council shall cause to be made a map of all the-streets and highways in said city, and to be designated thereon in such a manner as they deem proper those streets and highways, which, in their judgment, cannot be put in proper condition for general travel without too great expense. They may repair said streets for the convenience and benefit of the inhabitants thereof, but said corporation shall not be liable for any accident or injury to person or property caused or occasioned by the defective condition of any street or highway thus designated.”

The place in question was not a highway imposed or attempted, to be imposed upon the city without its authority; it was there before the defendant became a city, was being used as a highway, and in accepting its charter, and the obligations it imposed, the defendant became responsible for it and other highways, see City of Rochester v. Campbell, 123 N. Y., 405-411; 34 St. Rep., 77, unless it relieved itself in the manner provided for in § 88 of chap. 131 of the Laws of 1885 above cited, and there is no evidence in the case showing that the defendant has ever designated John street as one of the streets for which it should not be liable as provided in that section. If it desired to escape responsibility for the street it should have complied with the requirements of the law, and the burden of proof is upon it to show that it has done so; and no proof being offered to that effect the presumption is that it has not designated John street as one of the excepted streets, but has elected to care for, maintain, and be fully responsible for it as one of the streets and highways of the city.

Judgment should be affirmed, with costs. . .

Putnam, J., concurs; Mayham, P. J., riot sitting.  