George Crane Morehouse.

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 76 of 96)
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amended by § 7, chap. 503, of the Laws of 1880, imposing upon the overseer of
highways the duty to keep in order the highways in his district, do not relieve
the commissioner of highways from the duty imposed upon him by the same sec-
tions of seeing that the roads are kept in suitable repair, and for that purpose of
giving the requisite directions to the overseer to use the means provided by the
statute to supply the work necessary to do it, and also to use reasonable diligence
to see that his directions are executed; and that his neglect to discharge this duty
gives a person injured by it a right of action against the town under the provis-
ions of chapter 700 of the Laws of 1881.

The washout which produced the defect in question occurred on August 23,
and the accident occurred on the evening of September 5. The commissioner
was advised of the washout shortly after it had happened, and requested a per-
son to see the overseer and have him fix the road, and evidence was given tend-
ing to prove that such person saw the overseer on the same day and told him what
the commissioner had said, although this was denied by the overseer, who testi-
fied that he first learned of the defective condition of the road on September 8,
and that he repaired it on September 7. Held, that, as the repair did not require a
great amount of work, a verdict of the jury finding that the commissioner had
been guilty of negligence, should be affirmed; that a request to charge that if the
jury found that the commissioner sent directions by the person named to the
overseer to repair the road, and that such directions were communicated to him,
the commissioner's duty was discharged, was properly refused, as the care of the
highway imposed upon him by the statute required him to ascertain within a
reasonable time whether the directions given by him had been properly executed.

Qucere, as to whether, if the commissioner was merely an officer de facto, his
mere failure or omission to act could be charged to him as negligence.

Parman v . Town of Ellington, 46 Hun, 41 .

Plaintiff was injured by falling into a hole adjoining the sidewalk which formed
part of a drain and had remained unguarded for more than a year. Held, that
whether the hole was a dangerous one was a question of fact for the jury.
Although plaintiff was acquainted with the defect which caused the injury, the
question of contributory negligence is one of fact for the jury to determine under
all the circumstances.

Phillips V. The Towu of Fishkill, 26 N. Y. W. Dig. 103.

A highway commissioner negligently left a highway bridge he had constructed
in a dangerous condition. Held, that the commissioner having undertaken to
build the bridge was liable for negligence in its construction to those injured
without fault, although sufficient funds had not been put in his hands for the
purpose of building. Defendant's intestate was killed by an accident caused by

Roads and Bbidqbs. 689

a carriage in which she was riding being driven off a bridge. The accident took
place upon a dark night, and it was shown that the driver, previous to reaching
the bridge not being able to see had allowed the horses to take their own path.
Held, that it was not negligence per se in the driver to undertake the journey in
the night, although very dark, nor was it so allowing the horses to choose their

Rector, adm'r, etc., v. Pierce, com'r, etc., 3 T. & C. 416.

The statute (1 E. S. 501, sec. 1) requiring commissioners of highways to keep
the bridges and highways in repair, imposes upon them the duty of active over-
sight and constant vigilance, and requires them to exercise a reasonable degree of
watchfulness in ascertaining from time to time, the condition of the highways
and bridges, and in preventing them from becoming dilapidated or dangerous.

The mere fact that they have not been notified of the existence of a defect
does not necessarily relieve them from liability to one who has been injured by
reason of their failure to discover and repair the same.

Bostwlok T. Barlow et al., 14 Hun, 177.

No duty attaches to commissioners of highways to repair roads and bridges
until funds are provided for that purpose by the public.

If commissioners are not furnished with sufficient funds, they are not bound to
repair all the bridges in the town.

They owe no duty to any one to undertake more than the funds in their hands
will complete and pay for; and they may exercise a discretion as to which of the
bridges in the town they will undertake to repair.

They will be presumed to have exercised that discretion in good faith, and
cannot be made responsible, in a civil action, for its exercise.

Town commissioners of highways are in no event liable to a private action for
a mere neglect or omission to keep the highways of their towns in repair.

Garlinghouse v. Jacobs et al., 29 N. Y. 297.

In an action against a town to recover for injuries sustained by the fall of a
wooden bridge, caused by the breaking of a, decayed or rotten chord or stringer,
it was shown that the bridge was in an unsafe and dangerous condition and had
been so for some period of time ; but it appeared that the highway commissioners
employed an expert to examine, inspect and test the bridge, its chords, stringers
and beams, and that he made such examination a few days before the accident, iu
their presence, and pronounced the bridge safe and sound. Held, that as it was
apparent from the evidence that if a proper examination had been made and the
proper tests applied the defect would have been discovered, the jury were
warranted in coming to the conclusion that the expert and commissioners failed
in this particular, and that the town was liable.

PhiUps v. The Town of Macedon, 27 N. Y. W. Dig. 331.

As, by statute, the primary responsibility for the maintenance and repair of
highway bridges in a town is cast upon the town (1 R. S. 503, sections 2, 3, 4,
chap. 374, Laws of 1833; chap. 65, Laws of 1857; chap. 103, Laws of 1858; chap.
700, Laws of 1881), it has such an interest in the preservation of such a bridge as
gives it a right of action against any person who, intentionally or by negligence,
injures it, making repair or rebuilding necessary to recover the expense incurred.

Where, therefore, through the negligence of the agents of the State, certain
highway bridges of a town were inj ured, held, that the State was liable for the
expenses incurred in making the necessary repairs (chap. 331, Laws of 1870);
also, that the claim therefor, on behalf of the town, was properly presented in the
name of its supervisor.

Bldelman v. State of New York, 110 N. Y. 232.

In an action against a town for death caused by an accident arising from a dan-
gerous highway, where the evidence shows that the accident occurred while the
deceased was driving with a heavy load down a steep descent, and the testimony
is conflicting as to whether his wagon had a brake and whether he was in a posi-
tion to use it, the question of contributory negligence should be left to the jury.

Bryant v. Town of Randolph, 6 N. Y. Supp. 438.


690 Supervisors' Manual.

Where the danger arose from the general construction of the highway, which
had remained in the same condition for twenty-seven years, the jury should be
allowed to take that fact into consideration in deciding the question of negligence.


The fact that the defective highway was on land belonging to a railroad com-
pany should also be considered by the jury in determining the question of negli-


In such an action, evidence that eighteen months before the accident the high,
way commissioner did not have sufficient funds with which to repair the highway
is not admissible in defense.


Commissioners of highways have no power to contract a debt against the town
'by borrowing money for the repairs of roads and bridges.

Accordingly, where commissioners of highways borrowed $1,000, for this pur-
pose, on a note purporting to bind them in their official capacity, held, that an
action could not be maintained against their successors to recover the amount.

The commissioners are not bound to repair either roads or bridges until the
necessary funds are provided.

Barker v. Loomis, 6 Hill, 463.

It is the duty of commissioners of highways to repair defective highways or
bridges, after notice of their condition, with reasonable and ordinary care and dili-
gence, if they have sufficient funds in their hands or authority to procure such
funds; and neglect of this duty renders them liable in a civil action to any person
specially injured thereby.

Actual notice of the defective condition of a highway is not necessary, where
the circumstances are such that ignorance on the part of the commissioners is, in
itself, negligence.

The issue being the fact of negligence, the motives, or good faith, of the com-
missioners are entirely immaterial.

The principle should be regarded as settled in this State, that public officers,
whose duties are not judicial, are answerable in damages to any one specially
injured by their careless and negligent performance, or omission to perform, the
duties of their office.

Hover v. Barkhool, 44 N. Y. 113.

In an action against commissioners of highways for an accident caused by a hole
in a bridge, the referee found that none of the defendants had any knowledge
prior to the accident that the bridge was out of repair, and that no willful omis-
sion of duty had been established upon the part of any of them. Held, that the
report in favor of defendants must be set aside. Such commissioners owe to the
public an active duty, the duty of inspection of highways within reasonable
periods, and one question always is whether, under the circumstances, they
were bound to know of the defect; and this, apart from any question of actual
knowledge or willful neglect.

Cousins v. Carncross, 21 Dig. 435-6.

Chapter 700 of 1881 , providingthat the several towns in this State shall be liable
to any person suffering damages by reason of defective highways or bridges, in
cases in which the commissioners of highways were then liable therefor, instead
of such commissioners, did not render the towns liable for damages theretofore
occasioned by such defects in the highways or bridges, but only created and
imposed such obligation upon them for damages to be sustained after its passage.

Frasier v. Town of Tompkins, 30 Hun, 168.

The statute requiring commissioners of highways to keep the bridges and high-
ways in repair imposes upon them the duty of active oversight and constant vigi-
lance, and requires them to exercise a reasonable degree of watchfulness in ascer-

KoADS AND Bridges. 691

taining from time to time the condition of thfl highways and bridges, and in pre-
venting them from becoming dilapidated or dangerous.

The mere fact that they have not been notified of the existence of the defect does
not necessarily relieve them from liability, to one who has been injured by
reason of their failure to discover and repair the same.

Bostwick v. Barlow, 21 Hun, 177.

The liability of towns is not extended by the Laws of 1881, chapter 700, to cases
in which the commissioners of highways were not liable prior to the passage of
that act.

In an action against a town to recover damages for injuries alleged to have been
caused by the negligence of its agents and servants in failing to repair a highway
or bridge the complaint must allege that defendant had funds, or the means of
acquiring the same, or that its highway commissioners had funds or means of
acquiring them.

Eveleigh v. The Town of Hounsfield, 20 Dig. 210; S. C, 34 Hun, 140; Acker v.
Town of Newcastle, iB id. 312, supra; Garlinghousev. Jacobs, 29 N. Y. 297, siipro.

In an action against a town to recover damages for its neglect to keep a bridge
in repair, it is not necessary to allege in the complaint that the defendant had
money with which to make the necessary repairs.

Where an act of the legislature imposes upon two towns the duty of keeping a
bridge in repair, an action for their neglect so to do will lie against the two towns

Oakley v. Town of Mamaroneck, 39 Hun, 448.

To relieve the commissioners of highways of a town from personal liability to
one who has been injured by their neglect to repair a defect known by them to
exist in the highway, it is not sufficient to show that they had no funds on hand
wherewith to cause the necessary repairs to be made, but it must also be shown
that they had sought, through the proper channels, to procure the said funds; and
their failure so to apply therefor will render them liable for the damages sua-
■tained by reason of such defect.

Warren v. Clement, 24 Hun, 472.

A village incorporated under chapter 291, Laws of 1870, is not bound to repair
bridges situated within its corporate limits unless it elects to do so. In the ab-
sence of such election the town continues to be bound to repair such bridges, and
is liable to any person injured by its neglect to keep them in safe condition.

Washburn v. Village of Mt. Kisoo, 35 Hun, 329.

Towns not Liable, for Transporting Engines
— When. — No town shall be liable for any damage resulting to
a person or property by reason of the breaking of any bridge by a
traction engine in crossing the same of the weight of four tons or
over, while such person is engaged in transporting or driving such
engine along or upon any of the highways of this State.

Chap. 626, Laws of 1887.


§ 863. Town, Village, Etc., May Build Bridge.

Any town, village or city on the line of any navigable canals of

the State may, with the approval, consent and under the direction of
-the superintendent of public works, erect, build and maintain within

693 Supervisors' Manual.

its limits a bridge or bridges across said canal, of such kind, dimen-
sions and materia], and with such approaches, as may be deemed
best, at the proper cost and expense of such town, village or citv, at
any point where there is not now a bridge built and maintained by
the State.

Chap. 488, Laws of 1881, § 1.

§ 864. Appointinent of Tenders, Etc.— Incase any
such bridge, by reason of being a hoist, lift or swing bridge, shall re-
quire the constant attendance of bridge tenders to manage and work
such bridge, the superintendent of public works shall alone have the
power of the appointment and removal of such and so many of such
bridge tenders as he may think proper, but the expenses or wages of
such bridge tenders shall be paid to such superintendent of public
works by any such town, village or city, when and as often as he
may require, to be by him paid to such bridge tenders, and all the
cost of material, power or tools necessary for the tending of such
bridge shall be paid for by such town, village or city, on the demand
therefor of such superintendent of public works.
Id., § 2.

§ 865. Adoption of Ordinance.— The common coun-
cil of any city may, and is hereby authorized and empowered to en-
act and adopt an ordinance for the erection and construction of a lift,
hoist or swing bridge over any canal at any street in any such city
where, in the opinion of such common council, such bridge may be
deemed necessary, and such common council is hereby empowered to
le^y and assess upon the property benefited the cost of constructing
any such bridge, provided, however, that in any such case such city or
common council shall first obtain the consent and approval of the
superintendent of public works to such proposed bridge, and such
bridge shall be built, maintained and operated at the expense of any
such city, or of the property adjudged by the common council bene-
fited thereby.

Id., §3.


§ 866. The powers of the board of supervisors in relation to
highways and bridges, in cases where towns or town officers have
some part in the proceedings, are detailed in the first part of this

Other powers in the matter are as follows :

The board of supervisors are empowered.

EoADS AND Bbidges. 693

§ 867. Under Cbapter 314, Laws of 1838, For
Sridges. — To cause to be levied, collected and paid to the treas-
urer of the county, such sum of money as may be necessary to con-
struct and repair bridges therein ; and to prescribe upon what plan
and in what manner the moneys so to be raised shall be expended.

Chap. 312, Laws of 1838, § 1, subd. 1.

To Apportion the Tax so to be raised among the several
towns and wards of their county, as shall seem to them to be equit-
able and just.

Id., subd. 2.

To Appoint Special Commissioners to lay out

public highways in those cases where they shall be satisfied that the
road applied for is important, and that the authority now conferred
upon commissioners of highways cannot or will not be exercised to
accomplish the laying out of such road.

Id., subd. 4.

Provision as to Opening* Public Highways.

— The power given to boards of supervisors by subdivision 4 of sec-
tion 1 of the act entitled " An act to enlarge the powers of boards
of supervisors," passed April 18, 1838, to appoint special commis-
sioners to lay out public highways, shall -not be exercised by any
board of supervisors, unless the applicant therefor shall prove to
such board of supervisors the service of a notice in writing, on a
•commissioner of highways of each town through and into which any
such highway is intended to be laid, at least six days previous to
presenting such application, specifying therein the object thereof,
and names of persons proposed to be appointed such commissioners.

Laws of 1848, chap. 164.

Notice to be Published. — All persons intending to
apply to any board of supervisors for the imposing of any tax pur-
suant to the first section of this act, except in cases under the fifth
subdivision of that section, shall cause a notice of such application
to be published once in each week for four successive weeks imme-
diately preceding the meeting of the board of supervisors, at which
such application shall be made, in a newspaper printed in such county ;
but if no newspaper be printed in the county, then such notice shall
be published in like manner, in some public newspaper printed
nearest thereto.

Chap. 3U, Laws of 1838, § 3.

694 SuPEKVisoBs' Manual.

Special Commissioners to be Paid. — The super-
visors shall have power to provide for the payment to the special
commissioners to be appointed under the fourth subdivision of the
first section of this act, for their time and expenses. The decisions
made by said commissioners may be appealed from, and reviewed in
the same manner and with the like authority as is allowed by law in
the cases of roads laid out by the commissioners of highways of any
town. The roads so to be laid out by such special commissioners, or
the same as settled on appeal, shall be recorded, opened and worked
as public highways of the towns in which they are respectively sit-
uated, in the same manner as other highways of the town are now
required by law to be recorded, opened and worked.
Id., § 4.

The decisions under this act are set forth at g 550, ante.

§ 868. Under Chapter 855, La-ws of 1869— Use
of Abandoned Plank and Turnpike Roads.—

Such boards of supervisors shall have power to provide for the use
of abandoned turnpike, plank or macadamized roads within any
town, as public highways ; and for the improvement of any public
highway laid out in pursuance of law ; and for the location, erection^
repair or purchase of any bridge, except over navigable streams ; and
for the apportioning the expense of any public road or bridge upon
such towns as may be just ; and for the borrowing of money by any
town or towns or by the county, for the purpose aforesaid ; or for
general purposes in anticipation of taxation for such purpose au-
thorized by law ; but jurisdiction in the cases aforesaid shall not be
exercised without the assent of two-thirds of all the members elected
to such board, to be determined by yeas and nays, which shall be
entered on its journal ; and no special ordinance, relating to any one
town or ward only, shall become operative unless it shall receive the
affirmative vote of the supervisor representing such town or ward.

Laws of 1869, chap. 855, § 2.

Rates of Toll, £tC. — The boards of supervisors shall have
power, by a like vote of two-thirds, to authorize an alteration, reduc-
tion or change of the rates of toll charged or received by any turn-
pike, plank or gravel road, or other toll road within such county, or
by any bridge company or ferry within such county, or, if within
more than one county, then by joint action with the supervisors of
3uch counties, provided such alteration shall be asked for by the di-
rectors, trustees or owners of such road, bridge or ferry ; and pro-
vided further, that no increase of toll shall be so authorized unless

EoADS AND Beidgbs. 695

notice of intention to apply for such increase shall have been pub-
lished in each of the newspapers pubHshed in such county, once in
each week, for six successive weeks next before the annual election
of supervisors in such county ; and any alteration in rates of toll
authorized by any board of supervisors may be changed or modified
by any subsequent board, on their own motion, by a like vote of
two-thirds of all the members elected to such board.
Id., § 3.
The decisions under this act may be found at § 557, ante.

§869. Under Chapter 482, Laws of 1875 —
Expense of Bridg-es at Couflty Lines, Etc.—

To apportion, as such board may deem equitable, the expense of the
construction of any public bridge (except in the cases specified in the
last preceding subdivision) over a stream or other water forming the
boundary line of counties between the towns at such point, and in
all cases, except as herein provided, such counties shall each pay not
less than one-sixth of the expense of such bridge, and to authorize
any town, on the vote of a majority of electors voting at any annual
town meeting or any regular called special town meeting, to appro-
priate such a sum (to be raised as other bridge moneys are raised), or
to pledge the credit of such town in the manner prescribed by law,
to wholly construct and maintain or aid in the construction and
maintenance of any bridge outside the boundaries of the town or
county, or from or within the boundary line of any town into
another town or county, but forming a continuation of highways
leading from such town or county and deemed necessary for the
public convenience.

Chap. 482, Laws of 18T5, § l.subd. i.

Expense may be Apportioned.— To provide for

the care, maintenance, preservation and reparation of any draw or
other bridge (except on the Hudson river below Waterford and on the
East river, or over the waters forming the boundaries of this State),
crossing a stream which forms at the point of crossing the dividing
line of counties or of towns, and the maintenance, care and preser-
vation of which bridge is by law a joint charge on such counties, or
on such towns, or on the towns in which such bridge may be situated ;
and to severally apportion, as such board may deem equitable, the
charge and expense for such maintenance, care, preservation and
reparation, on the towns respectively liable therefor, or on the re-
spective counties when liable ; but when such bridge shall span any

696 Supervisors' Manual.

portion of the navigable tide-waters of this State forming at the
point of crossing the boundary line between two counties, such ex-
pense shall be a joint and equal charge on the two counties in which
the same is situated, and the board of supervisors in each of such
counties is hereby authorized and directed to apportion such expense
among the several towns and cities in their respective counties, or
upon any or either of such towns and counties as in their judgment
may seem proper, provided, however, that no town or city not im-
mediately adjacent to such waters at the point spanned by such
bridge, shall be liable for any larger proportion of such expense than
the taxable property of such town or city bears to the total amount
of taxable property of such county. But no such bridge shall be
constructed imlessthe same is authorized by a resolution adopted by
a majority of the board of supervisors in each of such counties.

Id., subd. 5, as amended by Laws of 1880, chap. 320.

Roaid Distx*icts. — To authorize the consolidation in any
town of two or more of the established road districts therein, and
the division of any established road district into two or more ; and
to constitute the territory of any incorporated village into a separate

Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 76 of 96)