Before the act of 1872 the water-works of Sara-toga Springs had been substantially^ completed, except extensions. By that act five water commissioners were appointed, to whom was given the management and control of the water-works and their appurtenances. The defendant’s trustees appointed, or were to appoint, their successors. The commissioners have power to appoint a superintendent; the trustees are required to raise money, by tax, in accordance with the commissioners’ estimate, and pay the same to the commissioners; the commissioners are required to make report of their proceedings to the trustees when required. By a vote of two-thirds of the trustees, an action may be begun against the commissioners for any misfeasance, malfeasance or default in the discharge of their duties.
The defendant’s trustees are further required to issue $50,000 of bonds for the extension and completion of the water-works and paying indebtedness therefor, to be delivered to said commissioners. By the act of 1872 and the acts of 1868, chap. 557; 1869, chap-264, and 1870, chap. 31, it is apparent the water-works belong to and are the property of the defendant, and that the commissioners are merely the agents of the defendant in their construction and maintenance. The commissioners are responsible to the village corporation for the proper discharge of their duty. The commissioners and village are not two separate and independent bodies, but the former is subordinate to the latter. The commissioners owe no duty to individuals in respect to the highways of said village, and, as a consequence, are not responsible to individuals for any neglect of duty in that respect. The authority for the construction and maintenance of the water-works was for the benefit and advantage of the defendant, and not the commissioners. The defendant, having accepted such provision, has accepted the - agents appointed for it by the State, and becomes responsible for their acts as if appointed by itself. Bailey v. Mayor of New York, 3 Hill, 531, affirmed, 2 Den. 433; Conrad v. Village of Ithaca, 16 N. Y. 158, and note, p. 161; Diveny v. City of Elmira, 51 id. 506. By these cases it is evident that the defendant would be held liable, notwithstanding the quasi corporate character of the commissioners, upon *506the theory that such commissioners were acting for the defendant, and without any personal interest or profit to themselves.
But it is believed that the defendant may be made liable upon the further ground that it was the express and exclusive duty of the defendant to keep in repair the streets of said village. This was not done. The superintendent of the water commissioners was also the superintendent of highways of the village, whose duty it was to keep the streets in repair, or, in case they were necessarily out of repair, to so guard and protect the public that no injury should come therefrom. The superintendent directed this excavation to be made, and knew of its existence. His knowledge was the knowledge of the defendant. By his neglect to repair the highway, or guard against accident, the defendant became liable for plaintiff’s damages. Davenport v. Ruckman, 37 N. Y. 568; Hutson v. Mayor of New York, 9 id. 163.
The judgment and order appealed from should he affirmed, with costs.
Judgment affirmed.