
    John B. McSherry, Resp’t, v. The Trustees of the Village of Canandaigua, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    
      1. Villages—Negligence—Sidewalk—Laws 1854, chap. 353.
    Under chap. 353, Laws 1854, the jurisdiction of the trustees of the village of Canandaigua with respect to the streets and sidewalks became absolute as that of commissioners of highways, and they were invested with general powers and corresponding duties, and the responsibility for their proper performance devolved upon the municipal corporation as such, and it became liable for the negligence of the trustees.
    3.' Same—Notice of defect.
    Plaintiff was injured by a fall through a defective grating in a sidewalk. It was admitted that one Chase was street commissioner at the time of the accident and that notice of the defective grating had been given him some time prior to the accident. Held,, that whether he was defacto or de jure street commissioner was immaterial, under the facts of the case, and notice to him was a sufficient notice to the corporation of the defect complained of.
    
      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff, entered on verdict of jury at circuit.
    
      Edwin Hieles, for app’lts; Franle Rice, for resp’t.
    
      
       Affirming 35 St. Rep., 433.
    
   Gray, J.

The plaintiff sued the defendants for the alleged neglect to keep a sidewalk in repair; in consequence whereof he sustained personal injuries by a fall through a defective and unsafe grating. The defendants have appealed from the affirmance of the general term of a judgment entered by the plaintiff upon a verdict by a jury in his favor. Of the points urged by their counsel I deem it unnecessary to refer to but two, and that reference may be brief, in view of the satisfactory opinion of Judge Dwight, at general term.

The appellants claim that the plaintiff should have been non-suited ; because under the village charter the trustees were under-no obligation to construct or repair sidewalks. In'his very elaborate brief the counsel for the appellants bases his argument in that respect upon a construction of the act, passed in 1815 (chap. 254), under which the village of Canandaigua was incorporated; of the subsequent act of 1847 (chap. 420,) constituting the village a separate road district, and of those provisions or sections of the general village incorporation act of 1847 (chap. 426), which were adopted by the village electors in 1848. in my judgment, we are not called upon, and it seems unnecessary, to follow him in tho-t argument, or to pass upon his interpretation of these laws. Whatever may have been the limitations upon the administrative powers and duties of the village trustees, with respect to the making and repairing of streets or sidewalks, the subsequent enactment of chapter 352, of the Laws of 1854, must be considered and taken to have so far enlarged those powers and duties as to have done away with the restrictions in the way of their exercise which may previously have existed with respect to authority either to-undertake such work or to bind the village. The title of the act, of 1854 is An act in relation to the village of Canandaigua and enlarging the powers and duties of the trustees of said village.”

Section 1 of the act provides that “ 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 have power to regulate, repair * * * the streets, * * * sidewalks * * * in said village and to prevent the incumbering of the same in any manner and to protect the same from encroachment and injury.” If this legislation meant anything it could but mean a new grant of powers by the state, whereunder an ampler scope was given, in the respects mentioned, to the jurisdiction of the municipal authorities of the village. If, under the act of 1847, the village trustees were dependent for their authority to repair the streets and sidewalks upon the action of the village electors, it might, well be said that no obligation rested upon them to keep them in repair, in the absence of such action as would confer authority and supply the moneys. But, upon the passage of the act of 1854, what was formerly a qualified, or limited, jurisdiction in the trustees, with respect to the streets and sidewalks, became absolute as that of commissioners of highways.

By virtue of the enlarged jurisdiction the village trustees were invested with general powers and with corresponding duties, and the responsibility for their proper performance devolved upon the municipal corporation as such. Conrad v. Trustees of the Village of Ithaca, 16 N. Y., 158; Saulsbury v. Same, 94 id., 27. For the negligence of the trustees the corporation became liable at the suit of an injured party. The principle underlying the liability so devolving rests in an implied obligation to be responsible for the faithful performance of the duties imposed, in consideration of the investiture of the trustees by the legislature with the grant of the wider power. This obligation, obviously, enures to the benefit of every party interested in its fulfillment. The action, therefore, was maintainable, if there was notice of the existence of the defect. There was evidence that one Homer Chase was employed by the trustees to superintend and examine the streets and sidewalks, and the admission was formally made of record that 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.” There was evidence further to show that notice of the dangerous condition of the grating had been given to Chase some time prior to the accident. Whether he was de facto ■or de jure street commissioner becomes immaterial, under the facts of the case, and if the jury found that there was notice to him, it was sufficient notice to the corporation of the existence of the defect complained of.

The other questions raised by the appellants’ exceptions in the case have been considered; but none are of sufficient importance to call for discussion here.

The judgment should be affirmed, with costs.

All concur.  