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PRACTICE REPORTS

IN THE

SUPREME COURT

AND

COURT OF APPEALS,

OF THE

STATE OF NEW YORK.

BY NATHAN HOWARD, JR.,
COUNSELLOR-AT-LAW, NEW YORK.

VOLUME XLIV.

ALBANY:

WILLIAM GOULD & SONS,

LAW BOOKSELLERS AND PUBLISHERS.

1872.

Entered according to act of Congress, in the year eighteen hundred and seventy-two

BY WILLIAM GOULD & SONS,

In the Office of the Librarian of Congress at Washington.

Rec. July 31,1

311873

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PRACTICE

REPORTS.

SUPREME COURT.

JAMES LAMENT, Survivor, &c., Respondents, agt. ISAAC T. HAIGHT and others, &c., Appellants.

Where a highway commissioner has received notice of the unsafe character of a bridge in his town, a year before an alleged injury has been sustained by reason of its defects, and has negligently omitted to cause it to be repaired, such commissioner is guilty of a wrong rendering him liable for all its consequences to those who might be injured by it.

It is the commissioner's wrong exclusively, and not that of his successors in office, and he may be sued for it as a mere individual, relying upon his official obligation to establish the duty he has violated.

Such a case is, therefore, not one where the action could be continued against his successor in office.

If the requisite notice has been given the commissioner, and he has funds, or could by reasonable official diligence have procured them, or without them could have caused the bridge to be repaired on the credit of the town, he is bound to have the repairs made, and a failure to do so, resulting in an injury to another, will render him liable to an action.

But the commissioner is not bound to make use of his own personal exertions to repair the bridge himself, or so far guard it by means of admonitions to the persons using it, as would inform them of its condition in order to protect himself against liabilaity for injuries which might be otherwise occasioned.

General term, third department.

September, 1872.

Before DANIELS, PARKER and PLATT POTTER, JJ.

THIS is an appeal from a judgment recovered upon a verdict and from an order denying a motion for a new trial, made upon the minutes of the justice holding the circuit.

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