
    THOMAS QUINN, Appellant, v. THE TOWN OF SEMPRONIUS Respondent.
    Negligence — claim for personal injuries caused by a defect in a town highway - poles piled near the side of the highway - evidence of want of funds by the conirnissioner.
    Where a claim presented to a town under section 16 of the Highway Law (Chap. 568 of the Laws of 1890) states that the claimant "sustained damages to his person by reason of a defect in the highway of said town," it is improper, juan action brought to recover damages from the town because of inji.wies so sustained, for the court, in its charge to t~ie jury, to exclude from their consideration proof admitted without objection on the trial, that the commissioner of highways had piled and left near the side of the highway poles to be used for the purpose of constructing barriers along a bridge, in crossing which the plaintiff, by reason of his horse becoming frightened by such poles, was thrown off and injured.
    
      Semble, that the piling of the poles at the point where they were placed might well have been found by the jury to constitute “a defect in the highway.” What evidence tending to show the want of funds, and a want of means of procuring them by a commissioner of highways, is insufficient to constitute a defense to such an action, considered.
    Appeal by the plaintiff, Thomas Quinn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 30th day of June, 1897, upon the verdict of a jury rendered after a trial at the Cayuga Trial Term, with notice of an .intention to bring up for review, upon such appeal, an order entered in said clerk’s office on the 21st day of June, 1897, denying the plaintiff’s motion for a new trial.
    The action was commenced on the 14th day of May, 1896, to recover damages for an injury received by the plaintiff on the 27th day of October, 1895, while he was passing over a defective highway and bridge of the defendant.' The jury rendered a verdict for the defendant.
    
      S. Edwin, Day and F. E. Hughitt, for the appellant.
    
      Hull Greenfield, for the respondent.
   Ward, J.;

In the fall of 1893 a highway was laid out in the town of Sempronius, in the county of Cayuga, three rods in width, and known as the “newroad.” At a place in said road, near Sayles’ Corners, abridge was constructed over a ravine about one hundred and fifty feet long of stone, "with dirt filling, about thirteen feet wide, the depth from the top of the bridge to the ground below exceeding six feet. At the time of the accident to the plaintiff there was no barrier or railing along the bridge. A few days before the accident a person employed by the highway commissioner of the town drew three loads of poles and posts for the purpose of constructing barriers along the bridge, one load of which was left at the west end of the bridge and the two other loads at the east end. There were eight or ten of the poles, which were of hemlock and ash and from sixteen to thirty feet long. The posts tmd poles were laid near the beaten track at the ends of the bridge.

On the evening of October 27, 1895, the plaintiff was driving a team which he testified was kind and gentle, and was p’assing westward, when his horses got frightened at something — the plaintiff thinks at the piles of poles and posts which were lying at the east end of the bridge •— jumped and ran, and when near the west end of the bridge the wagon went over with the plaintiff, and he was severely injured. Dorr Smith was the commissioner of highways of the town at the time of the accident, and had been since February, 1894. Some work had been done upon the new road by the commissioner preceding Dorr Smith; but the bridge was Constructed, as far as it had gone at the time of the accident, and the road had generally been worked and put in condition, while Smith was commissioner. Under his supervision the road was opened for public use and travel in July, 1894, and had continued to be used by the public up to the time of the accident.

The chief allegation of negligence on the part of the defendant set forth in the complaint was that the road across the ravine was narrow and had no safeguards and was negligently suffered by the defendant to remain in that condition for many months prior to the accident; and that, while the highway commissioner of the defendant was engaged in his official duties a short time before. October 7, 1895, he drew to and negligently piled and left the poles near to the side of the highway or caused the same to be done. Upon the trial the piling of these poles by direction of the commissioner of highways was shown by the plaintiff without objection on the part of the defendant; but the learned trial court, in its charge to the jury, eliminated this fact from the consideration of the jury as a ground of negligence, because it had not been stated in the plaintiff’s verified statement of claim that had been presented to the supervisor of the town under section 16 of the Highway Law; to this charge the plaintiff duly excepted. The verified statement. of claim was as follows :

Thomas Quinn hereby makes verified statement of his cause of-action against the town of Sempronius, N. Y. •:
“ For that, on or about October 27, 1895, he sustained damages to his person by reason of a defect in the highway of said town, on what is known as the new road, near Sayles’ Corners, such defect existing because of the neglect of the commissioner of highways of said town, and such damage amounting to $10,000. The road was narrow and there were no barriers; claimant’s wagon was overturned and he was greatly hurt, and became sick, sore, lame and disordered, and has ever since so remained; he has suffered great pain, has been hindered from his business and he has paid out considerable sums of money in endeavoring to be healed, and that he received such injuries without any fault or negligence on his part.”

Taken in connection with the claim that the piling of. the posts and poles near the bridge had frightened the horses, and as a result of such fright the injury had occurred, this ruling on the part of the trial court became very important, and 'may have determined the result reached by the jury.

Section 16 of the Highway Law, being chapter 56,8 of the Laws-of 1890, provides that “ Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages unless a verified statement of the cause of action shall have been presented to the supervisor of the town within six months after the cause of action accrue; and no such action shall be commenced until fifteen days after the service of such statement.”

The statement was presented within the time required by the statute. The object of the statute plainly is that the town shall have fair and timely notice of the cause of action and of the claim made against it, and time is given after the notice and before the suit is commenced for the town to examine into the claim and decide what to do with reference to it. This notice is not required to have all the formalities of a complaint or of a bill of particulars; its purpose is served by bringing the general nature of the claim to the attention of the town. In the cases of Paddock v. The City of Syracuse (61 Hun, 8); Sullivan v. The City of Syracuse (77 id. 440); Werner v. City of Rochester (Id. 33); Cross v. The City of Elmira (86 id. 467), and Stedman v. The City of Rome (88 id. 279) the charters of the cities that were defending provided in substance that the notice of claim should contain a statement specifying the time and place and cause or location of the accident. These cases have been cited as bearing upon the question of the sufficiency of the notice of claim in the case at bar. . The general principle sanctioned in those cases is that a substantial comnliance with the x statute in this regard is sufficient, but the notice in this- case is made under a statute that only requires a statement of the cause of action, and is not as 'specific as the city charters referred to. The notice sets forth a cause of action for negligence in regard to this highway; the defendant could not have -been misled as to the cause of action from the statement itself.

The notice contains the general allegation of a defect in the highway ; that it -was narrow, had no barriers, as a result of 'which the wagon was overturned and the plaintiff injured, and that the plaintiff was free from- contributory negligence, which constituted the plaintiff’s cause. of action. These allegations were sufficient to' include any negligence of the defendant which contributed to the result mentioned. (Edgerton v. New York & Harlem Railroad Co., 35 Barb. 389; affd., 39 N. Y. 227; where Grover, J., says [at p. 230] : “ The complaint contained a general averment that.. the injury was received from the negligence of the defendant and its employees, and it is, therefore, immaterial whether the proof established the particular negligence specified in the complaint, some negligence being shown.” To the same effect, Roblee v. The Town of Indian Lake, 11 App. Div. 435.)

The idling of the posts and poles at the point where they were placed,- the jury may well have found was a defect in the highway.

In Whitney v. Town of Ticonderoga (127 N. Y. 40, 44) a road scraper left by the side of the -road was held a defect, affirming 53 Hun, 214; and in the opinion at General Term- the court says: “ The Legislature obviously meant by a defective highway, one actually unsafe for public travel,” and cites as instances of defect a wooden awning over a sidewalk, a pile of ashes in the street and a pile of- stones upon the side of the roadway.

We have reached the conclusion that the exception we have com . sidered was well taken.

The trial court submitted the question- to the jury whether the highway commissioner was without funds with which to erect the barriers Upon the bridge, and if so, whether he had made every proper effort and taken all the steps that he could take under the Jaw to procure funds.

At the close of the charge the counsel for the plaintiff, requested the court to charge the jury that, “ on the evidence in this case, the want of funds is not available to the defendant.” He also requested the court to charge that “ the commissioners of highways, having power, to get further funds and not using the power, want of funds is not a defense in this case.” The court declined these requests and the plaintiff excepted in each instance.

It is well settled that the burden of showing the want of funds, and the want of means of procuring the same, is always a matter of defense. (Whitlock v. Town of Brighton, 2 App. Div. 23, and cases cited.)

The only evidence that the case discloses in regard to this defense is, that the highway commissioner, in the beginning of the year 1895, applied to the proper authorities for $500 and received but $300, and that he had exhausted that money upon the highways in August, before the accident to the plaintiff; and the further evidence of a witness who testified that, in 1894, he had had difficulty at the point of this accident, and had led his team across the bridge, and that he told the commissioner that some one would get killed there, and the commissioner said that he had no money to do what was needed, and that he had to do those things with his own money. This was a year before the accident. The case is barren of any proof showing that the commissioner availed himself of any of the means pointed out by the statutes of the State to procure the funds for the purpose of completing the bridge and putting up the barriers. It appeared that the expense of putting them up would; not exceed fourteen dollars; that he entered upon the work of con-, strnoting those barriers by furnishing the material and placing the road in a more dangerous, condition shortly before the accident;. and the commissioner, in view of these facts, cannot be permitted to excuse his negligence for want of funds. (Whitlock v. Town of Brighton, supra ; Rector v. Pierce, 3 T. & C. 416.)

The learned counsel for the respondent refers to Clapper v. Town of Waterford (131 N. Y. 382) as sustaining Ms contention upon this appeal. In that case it was shown- that the supervisor of the- town had the funds- in his hands, but had not paid tliem over to the commissioner, though the- latter had demanded them; and that court in that case said that the commissioner no doubt could have required the supervisor to have paid over the funds, and the only failure was a neglect to institute some proper proceeding to compel its payment to the commissioner,, and it had not been shown that the commissioner was guilty of any negligence in that respect.

In the case at bar it fairly appears that the only effort that the commissioner had made -for funds was to make an oral estimate of the amount required, which amount had not been allowed him.. The Clapper case is so different in its facts from the one at bar'that it doés not assist us here. The inference that the defendant’s counsel seeks, to draw from the Clapper case, that .after the defendant had established that the cominissióner was without' funds, the burden was shifted Upon , the plaintiff to show that the commissioner-had ' not exhausted the -statutory means to obtain the funds, is not warranted, for all the eases hold that the burden continues with the defendant until it establishes both propositions, viz,, that the commissioner was without funds and also without power to procure them. The defendant not having, established both- these- propositions, the trial court was not at liberty to submit the question-to the jury, but should have, held as matter of law that the defense had-failed upon this branch of the case.

The judgment and order appealed- from should be reversed and a; new trial ordered, with costs to the.appellant to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  