If the highway upon which the bridge in question is located is a town fine highway within the meaning of section 207 of the Highway Law, the towns between which it runs are jointly liable for the maintenance of the bridge. That section so provides. It does not, however, follow that the proceeding provided for in section 256 to compel the rebuilding or repair of such bridge may be maintained. That section applies to bridges over streams dividing adjoining towns hable to maintain the same. This bridge is wholly within one of the towns and the stream which it bridges does not divide the towns.
The provisions of section 256 in that regard are the same as originally enacted in 1857 (Laws of 1857, chap. 639), and the Court of Appeals has held that the proceeding, being statutory, can only be maintained in cases especially provided for; that where the *257bridge is wholly within one town and not over a stream dividing the towns the proceeding cannot be maintained, although the towns are jointly liable for its maintenance. (Matter of Freeholders of Cattaraugus County, 59 N. Y. 316.)
Sections 254 and 255 provide for proceedings for making and repairing joint bridges and cover all cases where two or more towns are liable for making and repairing such bridges, and are not limited to cases where the bridge is over a stream dividing the towns, as is section 256. (Lapham v. Rice, 55 N. Y. 472; Day v. Day, 94 id. 153.) These sections are applicable to this case if the highway is in fact a town line road. But, as before stated, section 256 does not seem to apply for the reason that the bridge is not over a stream dividing the towns. I think the decision in Matter of Freeholders of Madrid (44 Misc. Rep. 431) is in conflict with the decision in the Cattaraugus Case (supra).
I am of opinion that the order should be reversed and the proceeding dismissed, with costs.
Seaes, J., concurs.
Order affirmed, with costs.