The judgment and order should be reversed Upon questions Of law only and a new trial granted, with costs to the appellant to .abide event,. . -
The action is to recover damages for negligence in permitting a sluiceway across a highway under the traveled part thereof to become filled up so as to set back surface water accustomed to flow through the same upon the plaintiff’s premises.
The complaint, the briefs of both counsel, and the court in its charge state that the action is for negligence ef the defendant, the town. It is well settled, and has never been questioned, that a town has no duty to perform, as to the care of highways,.and can be guilty of no neglect with reference thereto.
The law-imposes the diity to care for highways upon the commissioner of highways) not'as agent .of the town, but in his. individual capacity as commissioner.. -
Formerly a recovery for defects ip highways could only be had against,the commissioner. Then in 1881 by chapter 700, section-1, it . was provided that if the commissioner was liable for neglect, an action could be maintained against the town.) not by reason of any agency of the commissioner, for the town, but merely because the statute *343so provided. (Clapper v. Town of Waterford, 131 N. Y. 382; Bryant v. Town of Randolph, 133 id. 70 ; Lane y. Town of Hancock, 142 id. 510.)' And the question for the jury was not whether the town was negligent, but whether the commissioner was. No negligence of the commissioner was imputable to the town. The liability of the town was a creature of the statute merely.
In 1890 the Highway Law (Chap. 568) was passed, and by section 180 of that law the statute of 1881 was repealed to take effect on March 1, 1891. (Id. § 183). Substantially the same provision was substituted for it, however, by section 16 of that law, which is as follows : “ Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges,. existing because of the neglect of any commissioner of highways of such town.” _ The basis of the right to recover is here plainly stated to be the neglect of the commissioner and not the town.
The trial court read this section to the jury, and then made the following statement to them: “ Now, it is the contention of the defendant in this case, that the defects therein referred to only relate to the defects in the traveled portions of the highway, or defects affecting the traveler. Now, that contention is one which I leave with you with other matters, as a matter of fact to determine.”
This statement in the charge was excepted to by the defendant’s counsel, and the court was requested to charge that the defect complained of in the case was not one contemplated by section 16 of the Highway Law, but the court declined so to charge.
The court did charge that no recovery could be had except under the provision of this section. The jury evidently found as matter of fact that the defect complained of was within the provisions of this section. Otherwise they could not have rendered a verdict for the plaintiff.
We are unable to perceive how the legal meaning or effect of a statute can be a question of fact for a jury. We had supposed it was always a question of law for the court. There was no dispute in this case as to what the defect was claimed to be, the stopping up of a sluiceway under the traveled part of the highway, and the damage resulting was not to a traveler on the highway, but to an *344adjacent property owner, the setting of • surface water , back'upon-his land, and damaging the same..' • . $
The highway was in no Way obstructed or interfered with so-far as'travel along the same was concerned. The defendant’s contention was. that the defects referred to in the statute related only to the traveled portion of the highway and affecting the traveler, and the court- was asked to construe the statute and to instruct the jury ■ as to its meaning so they could "follow those instructions-in considering the evidence, and deciding, the case. The court declined to do this and left the' jury to construe the statute as a matter of fact, and not Of law, ■ . ' '
We think it was the duty of the court to pass upon questions of law, and that it could not' properly refuse to .do so. Very likely if the jury decided the law properly, as'a question of fact, the defendant was not prejudiced, but we think': they went wi'Ong, arid held the defendant liable under this section,! when it was not liable^ at all,
"The court was requested to charge the jury that 'the defect"complained of was not such a one as contemplated by section 16 of the Highway Law, but the court declined so to charge.
' This, We think, was erroneous, because, first it was the duty of the court to tell the jury what the- law was, and* second,, thO request' correctly stated the.law applicable to the case. ' ■
The commissioner of highways of a., town owes no duty to an-adjoining owner -to provide a channel for the drainage of surface - water. (Gould v. Booth, 66, N. Y. 62; Acker v. Town of New Castle, 48 Hun, 312; Barber v. Town of New Scotland, 8.8 id. 522.) So that, if the' action had been against the highway commissioner of this town for negligence* no recovery could be had.
The present commissioner did not build the road or construct the. sluice in question.' The sluice waá put in b’y plaintiff when he was an overseer of highways, or path master'so called; The only neglpct. if any-complained of as' to the present commissioner was one of Omission merely, failure to remove the rubbish from the sluice so the water' could pass through. Such omission did not constitute negligence for which an action could be. maintained against him. But even if it did, and a. recovery could be had against the- commissioner, still the town was not liable because the statute was intended *345to-cover no such liability, but only such liability as resulted from defects in the highway, interfering with travel along the same.
This was plainly held in the case of .Barber v. Town of New Scotland (supra). That action was like this in seeking to recover damages caused by the setting back of water by reason of a culvert under .the traveled part of the highway being too small. It was held the highway commissioner would not be liable personally, and, if lie was, the defect complained of-was not one referred to in section 16 of the Highway Law.
See, also, Robinson v. Town of Fowler (80 Hun, 101), which was an action to recover damages for injuries to a workman employed by the commissioner of highways, on the work of making the highway. While blasting was being done a stone fell and injured plaintiff. It is quite apparent that injury did not result from any defect in the highway.
In Whitney v. Town of Ticonderoga (127 N. Y. 40), which was an action brought to' recover damages for injuries to a traveler resulting from the commissioner leaving a scraper in the traveled part' of the road, the court said the action could only be maintained by reason of section 1 of chapter 700 of the Laws of 1881, and that the term, “ defective highways” was used in “ reference to their condition for public travel upon them, which their designation as highways imports, and' in view of the purpose for which they are established and maintained.”
There was clearly no legal right to recover in this action, and it was erroneously submitted to the jury.
The motions for nonsuit should have been granted.
All concurred, except McLennan, ‘ P. J., who dissented in an opinion in which Spring, J., concurred.