(dissenting):
I believe that the maintenance of this highway was under the control of the State. The statute does not provide for any formality in connection with the adoption of the so-called “ patrol system.” In this case it appears that in January, 1918, the Division Engineer having in charge the highways in question filed a map with the State Commission upon which were designated certain portions of the public highways which were to be patrolled, and on June first of the same year a patrolman "was appointed. This was an affirmative act on the part of the State declaring an assumption of *212the responsibility for the care and maintenance of the highways to which such appointment related. It was at least prima facie proof that the patrol system had been adopted. The patrolman in question resigned after six days and no one was appointed to take his place until about two months thereafter. In the meantime the accident occurred. The mere fact that the patrolman first appointed did not perform any duties did not relieve the State from the responsibility which it had assumed by the adoption of the patrol system. No patrolman by the mere act of resignation could change the highway system of the State or shift the responsibility for the maintenance of any highway, over which his appointment extended, otherwise a vacancy for a single day would leave a situation where no responsibility could be charged against any municipality. The law does not require the State Highway Commission to go through the formality of establishing a patrol system when each patrolman is appointed. The system continues without regard to who may be the appointee.
In Borden v. State of New York (113 Misc. 232, 237) the Court of Claims in a somewhat similar case used this language: “A highway placed under the patrol system is under it at all times, notwithstanding that the Highway Department, in administering the system, considers proper, adequate and complete maintenance for the year may be accomplished during the working months and excluding winter.”
I am not content with the conclusion reached by the majority of the court on the question of what liability is assumed by the State under the patrol system, so called. In the prevailing opinion it is stated that “ the ‘ defects ’ which furnish the cause of action must in some way, as to their causation or their continuance, be referable to a fault in administering a ‘ patrol system ’ or system of ‘ constant observation ’ which has actually been inaugurated.”
In my opinion the assumption of the control and maintenance of the highway carries with it the obligation to place it and keep it in repair. It is true that if serious defects existed at the time of the creation of the State liability, that would be a matter to be taken into consideration on the question of negligence on the part of. the State in restoring the highway to a safe condition. I do not believe that it can be said as a matter of law that the State cannot be held liable for any existing defects. Its liability extends to its negligence in remedying such defects, and the solution of this problem would be at all times a question of fact, which in this case, has been passed upon by the Court of Claims.
I favor an affirmance of the judgment.
.Judgment reversed on the law and claim dismissed, with costs.