
    William H. Barse, as Sole Commissioner of Highways of the Town of Herkimer, App’lt, v. The Herkimer, Newport and Poland Narrow Gauge R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1888.)
    
    Commissioners of highways—May proceed by action against railroad ■ corporation—Laws 1855, chap. 255.
    The commissioner or commissioners of highways in each of the towns in this state are, by Laws 1855, chapter 255, expressly empowered to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commis- , sioners, and to maintain an action for damages or expenses which .any town may sustain or may have sustained or may be put to or may have been put to, in consequence of any act or omission of any such, corporation in violation of any law in relation to such highway. Held, that under this act the plaintiff, as a commissioner of highways, has a cause of action for the wrongs stated in the complaint.
    This action was brought in June, 1886, by William W. Barse, as commissioner of highways of the tdwn of Herkimer, in Herkimer county, in the supreme court, against the Herkimer, Newport and Poland Narrow Gauge Railway company. The action is brought under chapter 255 of the Laws of "1855. The defendant is a narrow gouge .railroad company, operating and running a road from Herkimer to Poland, in the county of Herkimer. The ■complaint alleges in substance that the defendant, without right or authority of law, took and appropriated certain parts of a public highway lying in the town of Herkimer and running up the West Canada creek” nearly parallel with the railroad. The bill of particulars of the plaintiff states the places and extent of the encroachments. The complaint also alleges that in order to make the road passable, and restore it to its former condition of usefulness, the commissioner of highways of the town of Herkimer was compelled to and did lay out large sums of money. The main part of the road taken and appropriated by the defendant, was a stone road, built at great cost to the town of Herkimer. At one point described in the bill of particulars. known as the dug-way, at least a quarter of a mile of this stone road was taken and appropriated by the defendants, and as the complaint alleges, without right or authority of law, and barely room left for one team to pass along. The prayer for judgment is in several forms. One of them asking for damages against the railroad company. The complaint also demands judgment that the deféndants be compelled by the court to restore the highway to its original condition, so far as they can without unnecessarily impairing its usefulness, and also demands such other or further relief as the plaintiff may be entitled to in the action. The answer denies the encroachments alleged in the complaint, and alleges that the company took and appropriated the road by due authority of law, and an issue upon that point is raised by the pleadings.
    The answer also sets out that-the defendant has restored the highway to its original condition of usefulness, and, in fact, claims that it has improved the highway. The issues joined in the action came on to be tried at the Herkimer special term, June 27, 1887, Hon. John 0. Churchill presiding. Before any evidence was given in the case, defendant’s counsel moved for a dismissal of the complaint on the grounds: First. That the action is improperly brought, and cannot be maintained by the plaintiff. Second. That mandamus is the only and proper remedy under the facts stated in the complaint, if established. After argument by the respective counsel, the court held and decided: First. That this is not the proper form of action, and is not the proper mode of obtaining the relief sought in this case. Second. That in this action mandamus is the proper remedy upon the facts stated in the complaint, and the court thereupon dismissed the plaintiff’s complaint, with costs. To all of which the plaintiff duly excepted. The order dismissing the plaintiff’s complaint was entered in the Herkimer county clerk’s office, June 29, 1887. Judgment was entered dismissing the plaintiff’s complaint July 6, 1887, with $99.79 costs.
    
      Devendorf & Smith, for app’lt; Samuel Earl, for resp’t.
   Follett, J.

Appeal from a judgment entered upon a decision of the special term, made on the trial of the action, dismissing the complaint upon the ground that it does not state a cause of action.

Section 28 of chapter 140, Laws of 1850 (the general railroad act), as amended by section 2 of chapter 133 of the Laws or 1880, authorizes every corporation incorporated under that act:

“5. To construct their road across, along or upon any * * * street, highway, plank-road, turnpike * * * which the route of its road shall intersect or touch, but the company shall restore the * * * street, highway, plank-road and turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness * * * . Nothing in this act contained shall be construed * * * to authorize any such railroad company to construct its road upon and along any highway, without the" order of the supreme court of the judicial district in which said highway is situated, made at a special term of said court, after at least ten days notice in writing of the intention to make application for said order shall have been given to the commissioners of highways of the town in which the said highway is situated.” The amendment of this subdivision in 1887, chapter 724, does not affect the question involved in the case.

It is alleged in the complaint that the defendant is incorporated under the general railroad act, the acts amendatory thereof and supplementary thereto; that in 1880, 1881 and 1882 it constructed its road on and along two of the highways of the town of Herkimer without having first obtained authority; and having so constructed its road that it has failed to restore said highways to their former state of usefulness, to the great damage of the plaintiff; compelling him and his predecessors in office to expend money in the reparation of the said highways. A judgment for damages is demanded and that defendant be required to forthwith restore said highways to their former condition of usefulness.

It was not claimed at the trial that a wrong which may be redressed in the courts was not stated in the complaint, but that the wrong stated could only be redressed by mandamus, upon which ground the complaint was dismissed.

Chapter 255 of the Laws of 1855 provides:

“Section 1. The commissioner or commissioners of highways in each of the towns of this state are hereby empowered to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the peformance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners, and to maintain an action for damages or expenses which any town may sustain or may have sustained, or may be put to or may have been put to, in consequence of any act or omission of any such corporation in violation of any law in relation to such highway.

“§ 2. Nothing in this act shall be construed as in any manner impairing the right of any person or officer to bring any action now authorized by law.

“§ 3. This act shall take effect immediately.”

This act gives this plaintiff a remedy by action for the wiongs stated in the complaint, and the court erred in dismissing the complaint.

The judgment is reversed and a new trial granted, with costs to abide the event.

Martin, J., concurs. Hardin, P. J., concurs in the fol* lowing memorandum:

Hardin, P. J.

Respondent’s counsel calls attention to Bozell etal., as Commissioners, etc. v. Andrews (103 N. Y , 150; 6 N. Y. State Rep., 730), and insists that it applies to this case, and that no remedy by action can be had, but it is clearly distinguishable from the case in hand, as that, was an action against a private individual, and this is one against a corporation. Chapter 255 of the laws of 1855, expressly authorizes an “action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation * * * , etc.” Hence, the Bozell Case does not support the respondent’s position. I concur in the opinion of Follett, J.  