Smith agt. Wright and others. SUPREME COURT. GEORGE SMITH agt. JOSEPH L. WRIGHT and others, commissioners of highways in the town of Kent. It is the duty of commissioners of highways of a town, in all cases, where means are provided by law, to repair the roads and bridges within their jurisdiction. And such commissioners, if they have the means, or have the power of being supplied with the means, and neglect to use and exercise the same, are liable as public officers, for any injury which may result from their neglect of duty. Dutchess Special Term, June, 1856. THE Complaint in this cause charges, that in May, 1854, the defendants were commissioners of highways of the town of Kent, in the county of Putnam. That it was their duty, as such commissioners, to repair, or cause to be repaired, the bridges in said town; and the plaintiff avers, that from the sources mentioned therein, the defendants had, or might have had, ample and sufficient means to keep all the bridges in said town in repair. That in consequence of the neglect of the defendants to repair one of the bridges in said town, the same was rendered unfit and unsafe for travel, and the horse of the plaintiff, in crossing it, was injured to the amount of $150. To this complaint the defendants demurred. G. DEAN, for plaintiff. C. GANUN, for defendants. DAVIES, Justice. The defendants, by their demurrer, have admitted all the allegations of the complaint. The material ones to be considered for the present are, 1. That it was the duty of the defendants to have repaired the bridge, at which the injury to the plaintiff occurred. 2. That the defendants had ample and sufficient funds for Smith agt. Wright and others. that purpose; or if they had not, it was through their neglect or default. In reference to the first point, there can be no doubt that it was clearly the duty of the defendants to repair the bridge in question. This has been the recognised law of this state ever since the decision of the case of Bartlett agt. Crozier, (17 John. 439.) This was an action against the overseers of highways for injury caused by their omission to repair a bridge. Chancellor KENT, who delivered the opinion of the court, came to the conclusion. that no action would lie against the overseers, because they act only under the orders of the commissioners, who alone are the responsible persons in respect to the repair of bridges. The statute gave them the care and superintendence of the highways and bridges, and made it their duty to cause them to be kept in repair. In that case he held that this duty did not exist absolutely, but only when the commissioners had money in hand arising from penalties and forfeitures, or which had been paid over to them under the direction of the supervisors, and inasmuch as the law had not supplied them with pecuniary means, nor armed them with the coercive power to meet and sustain so heavy a responsibility, an action would not lie against them. In the case of The People agt. The Commissioners of Highways of Hudson, (7 Wend. 474,) the court quotes from the opinion of Chancellor KENT, in Bartlett agt. Crozier, as containing the true rule on the subject. That was an application for a mandamus to compel the defendants to build a bridge which would cost over $1,400. The application was denied for the reason that the only sum at the disposal of the commissioners in any one year was $250, for the repairs of all the highways and bridges in the town. The statute, it was remarked by the court, did not extend their duty beyond their means. This case clearly affirms the rule laid down in Bartlett agt. Crozier, that it was their duty to repair to the extent of their means. Smith agt. Wright and others. The same point was ruled in The People agt. Adsit, (2 Hill, 619,) which was an indictment against commissioners of highways for neglect of duty in not repairing a bridge. The indictment contained no averment that the defendants had funds, or other means to defray the expense, and the court were of the opinion that the existence of the funds or specific means, was a condition precedent to the obligation of commissioners of highways to repair bridges; and in the case of Barber agt. Loomis, (6 Hill, 463,) it was held that commissioners of highways were not bound to build or repair roads or bridges until the necessary funds were provided for that purpose. I think, therefore, that it may well be regarded as settled by these causes, that in all cases the duty to repair is unquestioned when means are provided by law for that purpose. That the commissioners, if they have the means, or have the power of being supplied with the means, and neglect to use and exercise the same, are liable for any injury which may result from their neglect of duty. But whatever doubt may have existed on this point, it seems to me that it has been removed by the causes to which I shall now refer. In Adsit agt. Brady, (4 Hill, 638,) the supreme court applied these principles : The defendant was superintendent of repairs on the Erie canal, and the action was brought against him for damages sustained by plaintiff in not keeping the canal in good repair, and removing obstructions to the navigation. The injury was caused by a sunken boat, which obstructed the navigation, and rendered it unsafe, and had caused the plaintiff's boat to sink. The defendant demurred to the declaration, but the court decided that the superintendent was bound by statute to keep the section of the canal committed to his charge in repair, and that under the provisions of that statute he had been, or was in fault for not having sufficient funds in his hands for that purpose, and it was therefore his duty to repair without unnecessary delay. The court says, "when an individual sustains an injury by the misfeasance, or nonfeasance of a public officer, who acts, or omits to act, contrary to his duty, the law gives redress to Smith agt. Wright and others. the injured party by an action adapted to the nature of the case." The principle, the court said, was well settled; and so well settled did it appear to them, that they did not adduce any authority to sustain it. There can be no doubt of this. Applying these principles to the one now under consideration, what is the unavoidable conclusion? None other than that the defendants are liable to the injured party as public officers. They admit, by the demurrer, either that they had ample and sufficient means for the repair of the bridge in question in their hands, or that they were in fault for not having the same. In either case they are liable. I have not overlooked the distinction which the counsel for the defendants so ably and ingeniously undertook to draw between that case and the present, viz., that the plaintiff had a legal right to the use of the canal by paying toll therefor, and that therefore the defendant was liable, as in the case of a turnpike or railway. But the counsel must have seen that the case did not turn at all on that point. It was against a public officer for neglect of duty, and the court held him liable, because an injury had occurred which he had the means, or might have had the means of preventing. The liability on the ground supposed by the counsel would have been complete, whether the owners of the canal, turnpike or railroad, or their agents, had the means or not to keep the same in repair. If they had not the means, the law compels them to provide the same; and for any injury arising from their negligence in any manner, creates the liability. All the points arising in this case have been fully discussed and passed upon in the case of Hutson agt. The City of NewYork, in 5 Sand. Sup. Court Rep. 289. The opinion of a majority of the court in that case have been affirmed by the court of appeals, and I must regard it as the law in this state. It will be observed that it was dissented from by one of the most learned and upright judges who has ever occupied a place in the judiciary of the state, the learned Justice SANDFORD, of whom it has been well said, that "we are Burgart agt. Stork. at a loss whether most to admire his deep and extensive learning as a lawyer, his diligence, probity and wisdom as a judge, his urbanity and refined sentiments as a man, or his piety and humility as a Christian." Judgment must be rendered for the plaintiff upon the demurrer in this cause, with liberty, however, to the defendants, within twenty days after the service of notice of this judgment, to withdraw the same, and answer the complaint on payment • of costs. SUPERIOR COURT, BUFFALO. DAVID BURGART, appellant, agt. EDWARD STORK, respondent. In cases arising in justices' courts in the city of Buffalo, an appeal lies from the county court to the superior court of that city only; and the decision of the latter court is final. In cases arising in justices' courts out of the city of Buffalo, in the county of Erie, an appeal lies from the county court to the supreme court only, whose decision is final. Where an assignor of a thing in action is examined on behalf of the plaintiff, (assignee,) the testimony of the defendant is not limited to the same identical point to which the assignor has been examined, but may be examined to the whole matter to which the point upon which the assignor was examined relates. (17 Barb. 538.) 【This is adverse to several cases cited in note at the end of the case.] Notice [ten days] of the examination of an assignor, under § 399 of the Code, is necessary only in the cases specified in the last part of that section-(not in all cases)—that is, as against an assignee or an executor, or administrator, or trustee, &c. (See the several cases referred to in the opinion upon both sides of this question.) The provisions of the latter part of § 399 are rules of evidence, and are applicable to justices' courts. General Term, May, 1856. BURGART, as the assignee of one Conradt Scheiss, sued, in a justice's court, the defendant for the rent of certain premises. The plaintiff called Scheiss, his assignor, as a witness. The |