The defendant was by indictment charged with having on the 5th day of June, 1835, wickedly, unlawfully, and willfully interfered with and obstructed a public highway in the town of ICnox, in the county of Albany, and thereby causing the water to flow upon such highway, to its injury, and to the prejudice of the rights of the public who were entitled to use the same as a public highway. The prosecution gave evidence at the trial to the effect that in 1885 an embankment existed under the fence adjacent to such *267highway, and upon land occupied by the defendant, but which the evidence shows was owned by Mrs. Jane Crounse, who resided with her husband upon the same premises. Such embankment was removed by the defendant, who subsequently filled up the ground upon the premises occupied by him, thereby creating what was claimed by the prosecution to constitute an obstruction to the flow of the water in its natural course. Such filling was accomplished by the deposit of stone, gravel, and other materials, a short distance from where the obstruction first mentioned was located. Considerable evidence was produced at the trial in regard to such structures, and the extent thereof, and the effect produced by them, in regard to the flow of the water upon the highway. It seems from the evidence, as we understand it, that the water which accumulated upon the land occupied by the defendant was surface water, which, at certain seasons of the year, disappeared. The view which we take of this case does not render it necessary to examine the evidence, or to discuss the same to any considerable extent, for the reason that we have become convinced that legal errors were committed at the trial which prejudiced the case of the defendant to an extent which calls for a reversal of the judgment.
One material error consisted of the striking out upon the motion of the district attorney of the evidence of Andrew J. Armstrong, the commissioner of highways, who was examined as a witness on the part of the defendant for the purpose of showing that whatever he did in removing the embankment and filling upon the land which he occupied was done by the direction of such .commissioner of highways of the town of Knox. The motion and the decision thereon appear in the following evidence of the witness Armstrong: “Andrew J. Armstrong sworn for the defendant. Examined by Mr. Olute: Question. AVhere do you live now? Answer. Town of Wright, Schoharie county. Q. How long have you lived there? A. I moved there about a. week before the 1st of April of this year. Q. You moved there then in March, 1887? A. Yes, sir. Q. AVhere did you move from? A. Knox. Q. How long had you lived there? A. I was born there,—and I had been out of the town, I guess, three years; and I was forty years old in March,—about 37 years. Q. AVere you ever commissioner of highways of that town? A. I was, in 1885. Q. AVere you acquainted with this road that passes between the Methodist church and the school-house, starting from the Schoharie road, over to the street? A. I have always traveled it, more or less; not a great deal of late years. Q. While you were commissioner of highways, did you make an examination of that road? A. I did. Q. And of those sluices? A. Yes, sir. Q. And where the water was running? A. I did. Q. Did you see Mr. Crounse? A. I did. Q. And have a talk with him about it? A. Yes, sir. Q. As commissioner, did you take counsel as to what you should do to-the road? A. Yes, sir. Q. AVhat instructions, if any, did you give Mr. Crounse, as commissioner? A. I said to Mr. Crounse that we would each pick a man that would take good counsel,—he could and I would,—and as they decided so it should go; and he told me to pick mine first, and I did so; then he said, ‘We won’t pick but one; we will leave it to him,’—and we did so. I stated the case as near as I could, and the counsel decided. Q. After-getting the decision of the counsel, then w-hat did you say to Mr. Crounse? A. I told Mr. Crounse he could open the ditch on the side of the road, and let the water run. Q. Did you say anything to him about filling up on the side on his land or fence? A. Yes, sir; I think so. Q. Where the water had been running? A. Yes, sir. Q. What did you state to him ? A. I told him lie could fill that up; I didn’t think there was any place for water to run there. ' Q. You have examined the land adjoining this road at that place, have you? A. Yes, sir. Q. The water that comes from the west and crosses over and comes into this place, where does it go to? A. There had been some time a ditch cut through when I was there. It run into a piece of low land, as I should call it, in the second field, and there it remained until they dug a ditch, *268and let it out. The district attorney moved to strike out the witness’ evidence as to what he directed defendant to do, on the ground as commissioner of highways he was not authorized to permit the obstruction of a water-course, or the flooding of a highway; that, even if he did give such instructions to Mr. Crounse, Mr. Crounse was not justiQed in obeying them. Motion granted. Defendant excepts. Q. What, if anything, did you say to Mr. Crounse about opening the ditches on the side of the road, or taking away this embankment at both ends of that sluice? A. I told him that he could. Q. Have you been over here in Crounse’s field to make an examination of where this high ground —where the two portions come together? A. I haven’t been there since the fall of 1885.”
We are satisfied that the evidence stricken out was competent, and material to the defendant’s case. It at least tended to repel any charge or inference of malice, which was an element of the offense charged against the defendant. The defendant was called upon to vindicate his conduct, and was entitled'to explain the motives by which he was actuated in what he did. It is difficult to conceive more satisfactory evidence upon that subject than that testified to by Armstrong, and stricken out by the court. Such evidence was to the effect that the defendant sought and acted under the advice and direction of the officer of the town, who was charged with the care of the highways of the town, and was therefore competent to direct in regard to them. McFadden v. Kingsbury, 11 Wend. 667. And if such officer failed in judgment in regard to the direction which he gave to Crounse, certainly the latter should not be punished criminally for following it. We do not undertake to decide precisely the force and effect which the jury should give to that evidence, but merely that it was competent and material for them to consider, in connection with the other facts of the case. Such evidence was received without objection by the district attorney, and we think it was error on the part of the court to strike it out, after it' had been so received. A party is not at liberty at a trial to remain quiet when evidence is being given, and allow the same to be received without objection, and, after speculating in regard to its effect, cause it to be stricken out, as the motion under such circumstances comes too late. Quin v. Lloyd, 41 N. Y. 349. Judge Woodruff, at page 855, says: “A party against whom a witness is called and examined cannot lie by and speculate on the chances; first learn what the witness testifies to, and then, when he finds the testimony unsatisfactory, object either to the competency of the witness, or to the form or substance of the testimony. * * * The counsel may have been careless in permitting testimony to be given without objection, which would perhaps have been excluded if objected to; but this would not authorize the referee to strike it out after it has been received.” It does not seem to be a satisfactory answer that the district attorney attempted in this manner to raise a legal question in regard to the competency of the evidence, as that he could have accomplished by a direct request to the court to charge the jury in regard to the legal effect of such evidence, without violating a plain rule of evidence. It will be perceived by reference to page 64 of the case that the prosecution resorted to the same species of evidence by the examination of Charles Armstrong, as follows: ■“Charles Armstrong, sworn on behalf of the people. Examined by District Attorney Reilly: Question. Are you path-master? Answer. I was, in 1886. Q. You know this stream? A. I do. Q. And have known it for a number of years? A. 20 years. Q. What was its course through Crounse’s land—as described? A. Yes, sir.” Objected to. “Q. What was its course? A. Came down and across the road and went on to the lands occupied by Mr. Crounse. Q. When was that? A. 1885. Q. How? A. Dam in the fence where it had crossed through. Q. What, if anything, did you do in reference to that dam as path-master? A. I wasn’t path-master. District Attorney. I propose to show by this witness that by order of the commissioner he removed this dam. *269Q. What did you do in reference to that obstruction? A. Made a complaint to the commissioner of highways. Q. Then what was done? A. He ordered me to remove it. Q. Did you remove it? A. I did by help of district. Q. What do you mean by that? A. These that are assessed on the road.” It would seem that the defendant was entitled to the benefit of a principle thus established upon the same trial at the instance of the prosecution.
In this case it appears that the farm upon which the obstructions are claimed to have been placed and continued by the defendant was owned by Mrs. Crounse, the wife of the defendant, and that she resided upon the premises at the time. Under such circumstances, it has been decided by this court that the husband, while acting as the agent of the wife, cannot be made liable and punished for continuing a nuisance upon such lands. People v. Livingston, 27 Hun, 105. The indictment herein charges the defendant with continuing such alleged nuisance, and therefore this case is brought clearly within the doctrine of the case cited. For the reasons assigned we conclude that the conviction should be reversed, and a new trial granted.
Landon, J. Concurring with my Brother Ingalls, I add that the offense of committing a nuisance upon a public highway consists among other things in unlawfully doing an act which unlawfully interferes with, obstructs, or tends to obstruct, or render dangerous for passage, the highway. ' Pen. Code, § 385. The evidence which the court struck out on motion of the prosecution tended to show that the act of the defendant in 1885, in diverting the stream from its natural course through the lot of defendant’s wife to a course along the highway, was done by defendant under the authority of the commissioners of highways. Assuming the truth of what was thus attempted to be shown to be true, the act of defendant was in effect the act of the commissioner. Commissioners of highways have the care and superintendence of the highways and bridges in their respective towns, and it is their duty to give directions respecting the repairing of the roads and bridges. 1 Rev. St. 501, § 1. It does not appear that there was more than one commissioner in this town. I think the commissioner had the power to direct respecting the proper treatment of this water-course, and that if, in exercising his authority, he made a mistake, it was, in the absence of evidence to the contrary, simply a mistake in judgment, which in no degree impaired the power and authority which he exercised. The defendant, if acting under such authority, did not therefore act unlawfully, and hence his action would not come within the terms of the Penal Code above referred to. If defendant, after the above authority was revoked, repeated the act in 1886, he was not indicted for it.
Learned, P. J., concurs.