This appeal presents for review a judgment which enjoins and restrains the defendant state officials from failing and refusing to complete the building of a new bridge between the town of Easton in the county of Washington and an island in the Hudson river. The judgment directs the appellants to complete the building of this new bridge. The bridge is designed to take the place of a bridge that formerly existed between said points.
The mainland of the town of Saratoga is on the west *Page 488 bank of the Hudson river and opposite the town of Easton. In the river between the mainlands of these two towns is an island which is within the town of Saratoga. From the mainland of the town of Saratoga to the west side of the island there is a bridge and from the other side of the island to the town of Easton there was another bridge.
The findings made by the court below establish that the bridge between the town of Easton and the island was so interfered with in the course of the barge canal construction as to be rendered useless. It is the replacement of this bridge which the judgment appealed from requires the appellants to complete. The bridge when completed will form part of the highway of the towns of Easton and Saratoga. We think the judgment appealed from was properly made under the provisions of the Barge Canal Act. That act (Laws of 1903, chapter 147, section 3), provides that "New bridges shall be built over the canals to take the place of existing bridges whenever required, or rendered necessary by the new location of the canals." This act makes it the duty of the defendant state officials to carry out the provisions of the Barge Canal Act in the construction of the canal and the work incidental thereto. (Lehigh Valley R.R. Co. v. Canal Board,204 N.Y. 471.)
The duty of building the new bridge not having been discharged by the defendant state officials the judgment requiring them to do so only requires the performance of a statutory duty. The duty imposed by law to build a bridge requires the building of a bridge that is adequate and safe. We cannot assume that the legislature contemplated that a bridge of a different character should be built. The findings of the court below establish conclusively that the new bridge in its present condition is not adequate or safe. That determination is not subject to review in this court. It is urged by the appellants that the judgment in this action attempts to *Page 489 fix a liability against the state without legislative permission and that the Supreme Court is without jurisdiction to do this. This action is not against the state of New York. It is against certain state officers and the judgment herein merely directs these officials to perform the duty which the statute requires them to perform. (Rolston v. Missouri Fund Comrs.,120 U.S. 390, 411; Louisiana v. Jumel, 107 U.S. 711.) As was said by Mr. Chief Justice WAITE: "The litigation is with the officer, not the state." (Rolston v. Missouri Fund Comrs., supra.) The distinction pointed out between an action against the state and one against certain officials of the state has been recognized by this court and was explained and commented upon by Chief Judge CULLEN in Sanders v. Saxton (182 N.Y. 477). Moreover, the judgment appealed from merely requires that the duty which the legislature itself had imposed shall be performed.
The judgment appealed from should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK, CARDOZO and POUND, JJ., concur.
Judgment affirmed.