There seem to be two insuperable objections to the plaintiffs claims. 1. -If it was the defendant’s duty to keep the bridge in question in repair, yet the referee has -found that it was not chargeable with notice of the defect in the bridge which caused the accident. The finding is fully sustained by the evidence, and the fact found is a complete defense. (Griffin v. Mayor of N. Y., 9 N. Y., 456; Hume v. The Mayor, 47 Id., 639; Todd v. City of Troy, 61 Id., 506.) But, 2. The bridge on which the accident-happened was under the care of the Commissioners of Highways of the city of Yonkers and town of East Chester (2 R. S., 6 ed., 135.) The charter of the city (tit. 8) vested the powers of such commissioners in the Common Council. If the act of 1841, cited infra, be applicable to this bridge, then the liability to maintain it rested upon the city of Yonkers and the town of East Chester jointly, and such liability could be enforced only by action against the members of the Common Council of Yonkers and the Commissioners of Highways of East Chester jointly. Such is the plain provision of the statute on this.subject. (Laws of 1841, ch. 225, §2, as amended by Laws of 1857, ch. 383; Lapham v. Rice, 55 N. Y. 478.) For one class of cases the'statute cited grants a several as well as a joint liability, but for a neglect of duty only a joint liability is declared. With respect to their duty as Commissioners of Highways under the statute cited, the Common Council do not act as agents of the city, but as independent public officers. (N. Y. & *268B. Saw Mill Co. v. City of Brooklyn, 8 Hun, 37; S. C., 71 N. Y., 580.) That the case is governed by the act of 1841, and that the duty of maintaining the bridge was a joint one, we think is reasonably clear. The bridge was in existence when the act of 1841 was passed, and was then partly in the old town of Yonkers. The fact that it has been permitted to -remain for so long a period, and that it forms a part of a highway which connects Yonkers with East Chester, is sufficient evidence that the towns of Yonkers and East Chester' assumed the liability of maintaining it. (Jones v. City of Utica, 16 Hun, 441; Beckwith v. Whalen, 65 N. Y., 322.) Since the incorporation of Yonkers as a city the duty resting on the town has been east upon the Common Council as Commissioners.
Furthermore, we are of opinion that the division line between Yonkers and East Chester is the middle of the channel of the river. (1 R. S., 6 ed., 370, § 62.) That being so, the accident hapjiened outside of the limits of the city, and nothing has been shown which imposes the duty of maintaining the bridge beyond the city line, except the statute of 1841, before cited.
It follows that whoever may be liable for the injury complained of, the defendant is not.
The judgment must be affirmed with costs.
Barnard, P. J., and Pratt, J., concurred.Judgment affirmed with costs.