The defendant appeals from a judgment against it of $113 damages, besides costs, because of the negligence of its town superintendent of highways in permitting a hole to exist in a highway whereby the auto truck of the plaintiff was damaged. In a hollow between two hills was a sluiceway. The accident occurred December 19, 1918. About fifty feet south of the sluiceway on the easterly side of the road was a hole the dimensions of which are described by witnesses. There seems to have been a continuous *233rut for some little distance which was deeper at the place in question. The plaintiff ran a trucking business in Troy and sent his truck into the country for the purpose of gathering produce. At the time of the accident the truck was empty, going somewhere to get a load of hay. The two left-hand wheels both went into this hole, the forward wheel being pushed out by the propelling power of the truck but the rear wheel stayed in the hole and those in charge of the truck were obliged to jack it up and put stones in the bottom of the hole in order to get out. Three witnesses testify that the hole was so deep that the truck rested on its axle and the wheels spun around in the hole. The distance from the hub of the wheel to the outer edge of the tire was eighteen inches. Three witnesses testify that this hole existed about the middle of November. They located it with reasonable certainty as being about fifty feet south of the sluiceway and on the easterly side. Two of them estimated its depth about a month before the accident as from a foot to eighteen inches. The other one estimated its depth at that time as about eighteen inches. I do not think a nonsuit could properly have been granted. In Osterhout v. Town of Bethlehem (55 App. Div. 198), cited by appellant and decided by this court, it was held as a matter of fact and not as a matter of law that a hole or rut if ten inches deep was not such a defect as called for repairs by the highway commissioner. Other cases cited by appellant also refer to holes not nearly as deep as the present one. Of course, the town called witnesses whose testimony indicated that there was no hole there of such a depth. But the jury has settled that question and by its verdict has said that a hole a foot and a half deep existed a month before the accident. The town superintendent oí highways appointed foremen for different districts into which he divided the town. Lewis Crandall was the foreman in charge of the district including the road in question. Under his supervision the road was repaired as late as about the middle of November. He says they scraped it after each rain, but not after the middle of November. Nothing seems to have been done after that except that one of the men some time in December before the accident went along the road raking off the stones. He put his rake into the hole in question to see how deep it was. Of course, he gives its depth as less than do the plaintiff’s witnesses. He says it was his duty to report it if he considered it dangerous and that he made no report. In this particular town men seem to have been constantly employed to look after the condition of the highways and keep them in proper repair. This very road concededly had been under observation up to the middle of November after which time nothing seems to have been done, *234except that a man went over to rake off the stones, the man who put his rake in this hole in question.
I think it must be held on the evidence that there was a question to go to the jury.
I recommend, therefore, that the judgment and order be affirmed, with costs.
All concur, except H. T. Kellogg, J., dissenting, with an opinion, in which Van Kirk, J., concurs.