[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 103 Under the Revised Statutes (Section 1, article 1, title 1, chapter 16 [sixth edition], vol. 2, page 135), a commissioner of highways was charged with the superintendence of highways and held individually responsible at the suit of an individual who had sustained injury by reason of a defect in the highway after notice to the commissioner of the condition of the roadway, and a failure to exercise reasonable and ordinary diligence to repair the same, provided he had the necessary funds to make such repairs. (Hover v. Barkhoof, 44 N.Y. 113; People ex rel. VanKeuren v. Board of Town Auditors of Esopus, 74 N.Y. 310.)
A liability was first imposed upon the several towns of this state for damages to person or property by reason of defective highways or bridges in such town by chapter 700 of the Laws of 1881, in cases in which the commissioner or commissioners of highways of said towns were theretofore by law liable therefor.
The statute further provided that in the event of the recovery of a judgment against a town, due to the misconduct or negligence of a commissioner of highways, the town was authorized to maintain an action against the delinquent commissioner for the amount of such judgment.
Chapter 30 of the Laws of 1909, known as the Highway Law (Consolidated Laws, volume 2, chap. XXV), repealed the provisions of the Revised Statutes relating to highways, chapter 700 of the Laws of 1881 and the Highway Law of 1890. By section 40 of the Highway Law the office of town superintendent of highways was *Page 105 created, the officer to be elected at the biennial town meeting, unless the town should adopt a resolution for the appointment of such official. The powers and duties of the town superintendent of highways are enumerated in the statute, and embrace the general powers theretofore conferred upon the commissioner or commissioners of highways.
Overseers of highways are not mentioned in the Highway Law. Section 44 of the Highway Law provides that the town board may, in its discretion, upon the recommendation of a town superintendent, appoint a deputy town superintendent to be nominated by the town superintendent, to assist him in the performance of his duties, such deputy to act as such during the pleasure of the town superintendent. By section 74 the liability of a town for damages to person or property for any defect in the highway due to the negligence of a town superintendent is continued in practically the same language which was used in chapter 700 of the Laws of 1881, and by the following section (75) a right of action against a town superintendent is given to the town in cases where the town is obliged to pay a judgment obtained against it, due to the neglect of the town superintendent.
Under the Highway Law the defendant in this action cannot be held liable for the alleged injuries to the plaintiff unless upon the same facts the commissioner or commissioners of highways would have been liable prior to the enactment of chapter 700 of the Laws of 1881. (Clapper v. Town of Waterford, 131 N.Y. 382,388; Lane v. Town of Hancock, 142 N.Y. 510; Monk v.Town of New Utrecht, 104 N.Y. 552, 557; Farman v. Town ofEllington, 46 Hun, 41, affirmed, 124 N.Y. 662.)
Mr. Leary, who undertook the repair of the highway where the accident occurred, testified that his appointment to look after that portion of the highway was made by Mr. Staley when he was commissioner of highways *Page 106 four or five years before the date of the accident (which would antedate the enactment of the Highway Law providing for the office of town superintendent of highways), and that in doing the work in question he was acting for the town in his official capacity under Mr. Staley, the road commissioner.
After plaintiff rested, in response to an inquiry by the trial justice, counsel for defendant stated that Mr. Leary was appointed pathmaster by the town superintendent and given a district to have charge of under the town superintendent. Thereupon plaintiff reopened the case and called Mr. Leary, who testified in substance as stated.
The trial justice charged the jury, as matter of law, "that if there was any negligence on the part of Leary in the care and maintainance of this highway which caused the plaintiff's injury that this is to be regarded as the negligence of the town superintendent, and for that negligence the town of Rhinebeck is liable, provided there was not negligence on the part of plaintiff that contributed to bring about the accident," and that said Leary represented the town superintendent, and his failure to exercise reasonable care in the doing of the work which under the law the town superintendent was charged with would be the negligence of the town superintendent himself, and for that negligence the town would be liable.
A town superintendent of highways is not the agent of the town (People ex rel. Morey v. Town Board of Oyster Bay, 175 N.Y. 394), but an independent public officer with defined and limited powers. While he is charged with the superintendence of highways, and may employ labor necessary to perform his duty in that respect, the power of appointment of a deputy is not vested in him but in the town board. The office of pathmaster is not recognized or provided for in the Highway Law, neither does the statute authorize the appointment of such an officer by the town superintendent or permit the latter named, a *Page 107 public officer charged with a duty involving the exercise of judgment and discretion, to delegate the duties imposed upon him by law.
The liability of the town is purely statutory. To justify a recovery by plaintiff it was essential that the evidence should show acts of negligence upon the part of the town superintendent. The record fails to disclose knowledge of the condition of the highway by the town superintendent, or that the excavation had existed for such a length of time as to charge him with notice of a defect therein; that he undertook the repair of the same, or that Mr. Leary was appointed a deputy in the manner provided by law, therefore, his act could not be imputed to the town superintendent or to the defendant, and the charge of the trial justice quoted above was error.
Prejudicial error also arose by the admission in evidence of the declarations of Leary to the witness Horton. (Cook v.Village of Mohawk, 207 N.Y. 311-313.)
The judgment should be reversed and new trial granted, costs to abide the event.
CULLEN, Ch. J., WERNER, HISCOCK, CHASE, COLLIN and CUDDEBACK, JJ., concur.
Judgment reversed, etc.