(dissenting):
There are one or two points which make me doubt whether the admission of proof of the erection of a railing was error.
The case was tried before the court without a jury.
To hold defendants liable, it was necessary or competent to prove funds in their hands. Proof of the erection of the railing was offered for this purpose, and also to show that they exercised control over the bridge. For that purpose it was proper. (Sewell v. Cohoes, 11 Hun, 626.)
Then it appears that the railing was put up in accordance with a resolution passed prior to the accident. . In that view it was not an after thought, but was evidence that, before the accident, the defendants thought a railing necessary.
It is true that at folio 475 of the case it is said that the subsequent erection of the bridge was considered on the question.of defendants’ negligence. But if it was evidence that they had funds, or that they had control of the bridge, then it was proper on the question of their negligence. Their negligence consisted in not putting up a rail when they had funds (or the means to obtain funds), and when they had control of the bridge. And the fact that they had decided to put up a railing before the accident, and did put it up after, is not objectionable under the Dougan v. Champlain case, although they carried out their decision afterwards.
Judgment reversed, new trial granted, costs to abide event.