I cannot assent to the doctrine of Spinner v. N. Y. C. & H. R. R. R. Co. (6 Hun, 600-603) that “ when a gate is put in a fence for the convenience of the owners of land adjoining the railroad, and it is not kept shut, the fence is not maintained' within the true intent and meaning of the section above cited,” the section above cited being the one providing for the building and maintaining of fences by railroad corporation's.
The railroad company should riot be held liable to the same extent for an open gate or barway.provided for the private use of adjoining proprietors that it is when a ¡lortion of the fence is broken down, burned or otherwise destroyed. Maintaining a fence within the meaning of the statute, it seems to me, is altogether a different matter from keeping gateways constantly closed. The gate or bar-way is for the very purpose of making a convenient opening "through the fence, by which means the people can pass and repass; it is meant to be used from time to time, and it cannot be possible ¡that a railroad company must constantly keep guard, over the use by the adjoining proprietors, of such a gateway, made for their benefit, under penalty of being held liable to the same extent that it would be if some of the fence had been destroyed or broken •down.
This is not like the case of Spinner v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 153), which was the case of an original private farm ¡crossing being diverted from its purpose and being used by the railroad 'company for the benefit of its customers for shipping and ¡unshipping freight.
•Doubtless where the railroad company has knowledge that such private barway or gateway is habitually left open, or is out of repair so ¡that -it ¡cannot be closed, or that it has been broken down or destroyed ¡so ¡that it -no longer fulfills its office, it may be held liable the same ¡as when .any 'Other -portion of the fence has been broken down or destroyed. ■
*227The case of Hungerford v. S. B. & N. Y. R. R. Co. (46 Hun, 339) is not a case that sustains the contention of the plaintiff in this action. There it was simply held that gates or barways are part of the fence that the railroad company is bound to maintain and keep in repair, and that the defendant could only be held liable if it had actual notice that the bars were down, or if they had been down for such a length of time that the defendant might be presumed to have had notice through its agents or servants.
In this case the only proof of notice to the defendant is that one of its servants found the barway open and closed it on Saturday, as the accident in question happened on Sunday night.
It is true that the witness is an interested witness, and that thé jury had the right to disbelieve his testimony; at the same time it is the only evidence that the defendant had notice that such bars were down, and was coupled with the statement that they were thereupon closed.
Judgment and order affirmed, with costs.