Hines v. City of Lockport. that it may omit, in its discretion, to perform the duty, and not be liable for damages resulting from such omission. Such, however, is not the law. The rule is laid down in Hutson v. Mayor &c. of New York, (5 Seld. 163.) It is there said that when a public body is clothed with power to do an act, which the public interest requires to be done, and the means of performance are placed at its disposal, the execution of the power may be insisted on as a duty; notwithstanding the statute conferring it is only permissive. (The Mayor &c. v. Furze, 3 Hill, 612.) It was for a long time considered by the profession as doubtful, whether the commissioners of highways of towns were liable for injuries resulting from their neglect to keep the roads and bridges in the town in repair; it has, however, been finally settled, that they are not liable, unless they have in their hands funds applicable to such repairs. (Garlinghouse v. Jacobs, 29 N. Y. 297.) But when the common council of a city, or the trustees of a village, are made commissioners of highways, the duty to repair the streets becomes imperative, unless they not only have not funds applicable to that use, but have not by the charter the power to raise them. (Weet v. The Village of Brockport, 16 N. Y. 159; note to Conrad v. Trustees of Ithaca.) In Hicok v. The Trustees of Plattsburgh, (15 Barb. 427,) the corporation was sued for damages sustained by the plaintiff in falling, in the night, into a trench dug in one of the streets of the village, which was left without lights. or guards, notwithstanding the existence of the trench was known to one of the trustees. The trustees were, by the charter, made commissioners of highways, and it was shown that there remained unapplied 800 out of 1000 days' highway labor assessed on the inhabitants. The plaintiff was nonsuited, on the ground that the trustees, as commissioners of highways, were independent officers, and the corporation was not liable for their neglect of duty. This judgment was reversed by the Court of Ap Hines v. City of Lockport. peals, as appears by the statement of Denio, J., in Conrad v. Trustees of Ithaca, on the ground that the corporation was liable for the neglect of duty of the trustees; that they were not independent officers, but stood to the corporation in the relation of a servant to his master, liable to the same extent as a master would be for the misconduct of a servant. In Conrad v. The Trustees of Ithaca, (16 N. Y. 158,) the Court of Appeals adopted the opinion of Selden, J., in Weet v. The Village of Brockport, as a correct exposition of the law applicable to the liability of corporations and individuals upon whom the sovereign power has conferred, by grant or charter, the obligation to perform the duties for the benefit of the public. The distinction between the liability of commissioners of highways of towns and corporations, whose trustees or common council are declared by charter to be commissioners of highways, is thus stated by Selden, J.: “Whenever an individual or corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to indictment, but to private action at the suit of the person injured by such neglect. In all such cases the contract made with the government is deemed to enure to the benefit of every individual interested in its performance." Again, he says: "The liability of municipal corporations for the acts of trustees made by the charter commissioners of highways, is not that of commissioners depending on whether or not they have funds applicable to a use, but is an absolute liability resulting from a contract with the sovereign power, implied from the acceptance of the charter, that they would perform the duties thereby imposed upon them." Denio, J., says, in Conrad v. Trustees of Ithaca, "that it was held in the case of Hicok v. The VOL. LX 25 Hines v. City of Lockport. Trustees of Plattsburgh, to be a corporate duty to keep the streets in good condition." It seems to me that the principles thus settled by the court of last resort, establish the liability of the city of Lockport, for the neglect of its common council to keep the crosswalk in question in repair, provided the common council had funds which it could appropriate to that use, or power to raise them. The next and only remaining inquiry is, whether the common council was furnished with funds that it could apply to the crosswalk in question. The charter provides that $2500 of the moneys raised by the common council, and no more, except as thereinafter provided, may be used to defray the expenses of repairing and keeping in order the highways, sewers, bridges, and public grounds of the city. By sections 18 and 19, each male inhabitant above the age of twenty-one years, not assessed for real or personal property in said city, and not paupers or lunatics, are obliged to pay one day's poll tax, which may be commuted for one dollar, to be applied, in addition to the sum named in the preceding section, to the repair of the highways. How much arises from the poll tax, we do not know; but it must be assumed that proceeds sufficient to make all ordinary repairs of streets and crosswalks are furnished. Under these circumstances, it was incumbent on the defendant to show, if it could be shown, that there were not funds applicable to the repairs of the crosswalk in question. They have the means of showing the exact condition of the highway fund at any and all times, while the citizen cannot be presumed to have any knowledge on the subject. The commissioners of highways of towns owe no duty to individuals to keep the highways in repair, unless furnished with funds, to subject them to liability. That fact must be alleged and proved by the party seeking to charge them. But when the trustees of towns, or the aldermen of Hines v. City of Lockport. cities, are made commissioners, they are liable for neglect of duty, unless the charter withholds from them the power to raise funds to keep the streets &c. in repair. If any means are furnished to them, which they are authorized to apply to repairs, and if the corporation desires to exempt itself from liability by reason of the want of funds, it must prove the fact; and unless proved, it is liable. If the repair of crosswalks is not a charge on the city treasury, but is to be deemed to be a local improvement, and as such the expense is to be borne by those benefited, the city is still liable for damages resulting from neglect to keep them in repair. Its power to direct the repair does not depend upon the consent of the people, or any portion of them. The common council have but to make the order, and the work must be done; and the property benefited must pay the expense, or the persons liable to be assessed must do the work themselves. There is, therefore, in any contingency, ample means accessible to the common council with which to do the work, and, upon every principle, the city should be liable if it is not done. The judgment of the referee is reversed, and a new trial granted, costs to abide the event. [FOURTH DEPARtment, General TERM, at Syracuse, May 1, 1871. Mullin, P. J., and Johnson and Talcott, Justices.] MORAN vs. McCLEARNS In an action for wrongfully diverting a watercourse on the plaintiff's land, where the defendant justifies as overseer of highways, it is erroneous for the judge to instruct the jury that such diversion was unlawful, and that the plaintiff is entitled to recover the damages he has sustained by reason thereof; it being an instruction to the jury that the plaintiff is entitled to recover, and not a mere intimation of an opinion on a question of fact. It is also error for the court to instruct the jury that if they should come to the conclusion that the defendant acted maliciously in diverting the water, to injure the plaintiff, then the latter is entitled to recover all the damages he has sustained; whether the defendant had a right to turn the water or not; this amounting to an instruction to the jury that notwithstanding a public officer may be fully warranted and duly authorized, in law, to do the act complained of, yet his motives are the subject of inquiry by the jury, and that if they come to the conclusion that his motives were selfish and sinister, then the act becomes unlawful. Such a rule, determining the liability of public officers, not according to the lawfulness of their acts, but according to what a jury may suppose to have been their secret motives, could not be tolerated. A PPEAL by the defendant from a judgment of the county court of Onondaga county. The action was commenced in a justice's court, where the plaintiff recovered a judgment for $140 damages. On appeal to the county court, the jury found a verdict in favor of the plaintiff, for $150. The material facts are stated in the opinion of the court. Fuller & Vann, for the appellant. Ludington & Gillespie, for the respondent. By the Court, TALCOTT, J. The action was for wrongfully diverting a watercourse on the plaintiff's land, to his damage. The defendant justified as overseer of highways. The facts seem to have been that the defendant, as overseer of highways, had opened a ditch on the west side of a road in his district, which had, for some time, |