(dissenting.) On the 22d day of May, 1887, the plaintiff, while attempting to cross a bridge over Conewango river, between Poland Center and Mud creek, in the town of Poland, county of Chautauqua, was thrown down an embankment constructed at the northerly approach of the bridge, and in the fall he received personal injuries, to recover damages for which he brought this action, which was tried on the 14th day of May, 1888; before Justice Haight and a jury. It resulted in a verdict for the plaintiff of $1,000. A motion for a new trial was denied, and the defendant appealed to this court. The approach to the bridge was constructed by placing logs and chunks against the piles, extending it back from the stream to the bank, in this manner building up an embankment 10 or 11 feet high, next the bridge, covered with earth and gravel. The embankment at the end of the bridge was about 11-| feet high, growing less as the bridge was left. On each side of this embankment there was a perpendicular descent from the road-bed of 11J feet at the end of the bridge, and, 4 or 5 feet from that point, the descent *501was 10 feet. The floor of the bridge was 12 feet in width, which continued until the approach proper was reached, and then the way was narrowed to about 10 feet. There were no barriers- on either side of the embankment, and it was claimed on the part of the plaintiff that there was a hole in the approach at the northerly end of the bridge, near the easterly side of the road, which narrowed it to about 8 feet; It was also claimed that this hole had existed a month prior to the accident, and had gradually grown in size until it was 2 feet in diameter. At the time of the accident, the plaintiff was passing over the bridge from the south, and it is claimed that his horse shied and stepped into this hole, stumbled, and fell over the embankment, carrying with him the carriage and the plaintiff. There is no controversy on this appeal as to the plaintiff’s right to recover, unless errors were committed in the admission of evidence on the trial.-
Orrin J. Tracy was sworn as a witness, and testified that the morning after the accident he went to the bridge and measured it. He also stated the situation as it appeared at that time. Ho objection was taken to this evidence. George W. Jones was also sworn as a witness for the plaintiff, and testified that on the 17th day of April, 1888, he examined, with others, the northerly end of the approach, and describes it. He was then asked: “In what condition was the bridge at that time?” This was objected to by defendant’s counsel “as immaterial.” The plaintiff’s counsel said: “I simply want to show its condition when he made the examination.” The court stated, “You were not seeking to show that there has been anything done since,” to which the plaintiff’s counsel assented. The evidence was received, and the defendant’s counsel excepted. It is obvious that this evidence was not offered or received for the purpose of showing that repairs had been made after the accident to establish negligence. It was not so regarded by the defendant’s counsel, as it was simply objected to as immaterial, but the court took pains to indicate that the evidence was not admitted to show subsequent repairs for the purpose of establishing negligence. The doctrine of Corcoran v. Village of Peekskill, 108 N. Y. 151, 15 N. E. Rep. 309, has no application. Ho error was committed in the admission of this"evidence. Its purpose was simply to throw light upoii the condition of the hole, and its surroundings at the time of the accident. Walter B. Wait, a witness for the plaintiff, testified that he saw the highway commissioner the next day after the accident, and talked with him about it. He was then asked: “What did you hear him say about the road at that time?” This question was objected to by the defendant’s counsel, on the ground that the commissioner’s admissions were not binding upon the defendant. The objection was overruled, and exception taken. The witness then stated, he supposed the road was repaired; that he had ordered Campbell to do it, two different times. Other evidence was given to the same effect under like objection and exception. The admission of those declarations is urged as error by the learned counsel for the appellant.
Chapter 700, § 1, Laws 1881, provides “that the several towns in this state shall be liable to any person suffering the same, for all damages to person or property, by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of said town are now by law liable therefor, instead of said commissioner or commissioners of highways.” Commissioners of highways are public officers who have entire charge of the construction and repair of highways, and are in. no sense agents of the town. Bidwell v. Town of Murray, 40 Hun, 191-198. The statute does not change the relation of the town to the highways, or the commissioners, so far as it relates to supervision or repairs. Those obligations still rest upon the commissioner as such, and not as agent of the town. The liability which this act imposes upon the town confers upon it no control or supervision of the highways. The learned counsel for the appellant concedes that declarations or statements of the commissioner before the- accident would have been ad*502missible. It is a familiar rule that admissions or declarations of an agent are not admissible, no matter when made, to bind the principal, unless they are a part of the res gestæ. Thallhimer v. Brinckerhoff, 4 Wend. 394-897; Dean v. Insurance Co., 62 N. Y. 642. So that declarations made before the accident are no more admissible, unless part of the res gesta, than those after-wards. In Bidwell v. Town of Murray, above cited, evidence was admitted on the trial of the declarations of the commissioner the summer before the accident. The learned justice, delivering the opinion on appeal, speaking on this point, says, at page 196: “There was no error in receiving the evidence of the declaration-of the commissioner, made the summer before the accident, to the effect that he had got to go and repair this bridge. This evidence was competent only as bearing on the question of his knowledge of the condition of the bridge, and not to show that it was defective, and it was received only for such limited and legitimate purpose.” It is clear from this quotation that those declarations were not made while the commissioner was doing any act in an official capacity, or as a part of the res gesta. The statement was simply to the effect that he must thereafter go and repair the bridge. These admissions were received to show the knowledge of the commissioner. The personal knowledge of an individual may ordinarily be proved by his acts or' declarations. Whether these acts or declarations were before or after the accident must be entirely immaterial. The declarations in the case at bar were admissible simply as evidence tending to show' previous knowledge by the commissioner ot the existence of the hole which caused the accident. The learned counsel for the appellant is entirely right in his general position that declarations or statements of- persons not parties to the.action are inadmissible to bind those who are; but, where the material question depends upon the personal knowledge of the individual, in the nature of things, his acts or declarations must be evidence on that subject, and the time when made is entirely immaterial. The declarations in this case were received simply to show the knowledge of the commissioner, and the trial court fell into no erior in receiving them for that purpose. The statement that the highway commissioner’s declarations were not admissible to bind the town in the manner made is misleading. No general rule is more familiar than the one forbidding declarations of competent witnesses from being evidence against either party to the action; b.ut, where declarations are in their very nature competent to prove a fact, they are not rendered inadmissible, because they are not made by the parties to the action. The fact that the town is alone liable to be sued for an injury caused by a defective highway or bridge in no way changes the proof upon which a recovery depends. The duties of highway commissioners continue the same as to supervision and repairs; but, for the purpose of avoiding circuity and compelling direct payment, the statute transfers the right of action against the town. It is conceded that the proof to charge the town must establish the same facts as if brought against the commissioner;’ but the learned counsel for the appellant contends that, while as against the commissioner his declarations on the question of knowledge either before or after the accident would be admissible, they are not so against the town'. It is not necessary to determine whether, for certain purposes, the commissioner must be called to prove facts which could formerly be shown by his declarations; such as whether the highway or bridge was defective or out of repair. No such question is presented. The'point here is whether a certain fact which' may be an important element to prove negligence can be proved in a particular way. That fact, in the case at bar, is the commissioner’s knowledge. The knowledge of an individual may be shown in certain cases by his opportunities to know. It may also be shown by his acts or declarations. In the case at bar, it is agreed that, if the declarations had been made before the accident, that would have furnished evidence of knowledge. No criticism is made upon the decision in Bidwell v. Town of Murray, on this question. In *503fact, the learned counsel for the appellant admits that, if the declarations had been made before the accident; they would have been admissible on that question. The fact that admissions are generally admissible is not questioned by either party. It never was the rule that the time when declarations are made was important in determining the question of their admissibility. It never can be proved except as part of the res gestee, for the simple reason that declarations per se are generally inadmissible to bind third persons; but, where a thing evidenced by the declarations is confined tó the knowledge of the person making them, then a different question is presented. If a person before the accident, when he is doing no act required either by agency or official business, makes a declaration, it is not admissible, except as showing personal knowledge. If he makes the same declaration after the accident, no reason is perceived why it is not just as admissible for the same purpose. It is not a part of the res gestes in either case. As to whether he would be most likely to make a false declaration before or after the accident, as to his personal knowledge, must, in the nature of things, depend upon circumstances and conclusions affecting credibility. But how the time when made controls its admissibility is not seen. Bidwell v. Town of Murray is decisive upon this question. If the court was right in that case, it follows that the evidence was admissible in this to prove the same fact. The judgment and order should be affirmed.