(dissenting). Assuming the complaint sufficient, the nonsuit was proper, if the facts proposed to be proved were not sufficient to constitute a cause of action. Plaintiff’s counsel stated the facts as fully as he could. The substance of them was that for 200 feet the highway consisted of a corduroy, road, 10 feet wide, along the shore of the lake, but slightly above the surface of its waters, with no barrier upon the lake side against the-waves, and none on the other side against the swamp, and that it had long been in that condition; that a wave from the lake dashed over the road, and frightened plaintiff’s horses; hence the injury. Other horses had been frightened by the waves. The other matters stated by plaintiff’s counsel, namely, that the road was too low, too narrow, improperly guarded, negligently constructed and maintained, dangerous, too near the lake, etc., were plainly the inferences of counsel from the facts stated. The obligation of a town to maintain its highways is relative, dependent upon conditions and circumstances, and much less exacting than that of cities and villages. This court should do as the trial court did,—take judicial notice that the town of Indian Lake is in the northerly part of Hamilton county, that is, in the Adirondack wilderness, and should not forget that the law has regard to the fitness of things, and thus-should hold that a wilderness road is good enough for a wilderness. I advise affirmance.
HERRICK, J., concurs.