Section 4 of chapter 609 of the Laws of 1871 reads as follows . “It shall be the duty of every railway corporation operating a *439railway by steam power in the county of Kings, to station a flag-man by day, or signal-man by night, at all places where such railway crosses a public highway on the same grade thereof, whenever so reqiiired by the supervisor and highway commissioners or a majority of them, of the town where such crossing is located. And in case of the neglect or refusal of said railway corporation to station a flag-man or signal-man at any crossing within ten days after such requisition, it shall be the duty of such highway commissioners to appoint such flag-man or signal-manand the wages of such flag-man or signal-man so appointed by said commissioners, not exceeding three dollars per day, may be recovered from said railway corporation in an action brought by such supervisor, or his successor in office, or by such flag-man or signal-man, in any court of this State.”
Following this law the supervisor and commissioners of highways of the town of New Lots in Kings county served a notice in writing on the defendant requiring it to station flag-men by day and signalmen by night at all places where its railway crosses a public highway in that town, on the same grade as such highway, and designating New Jersey avenue, Yermont avenue, Schenck avenue, Smith avenue, Cypress avenue and Eldert avenue as such highways. The defendant failed to comply with the requirement and the commissioners of highways appointed the plaintiff and three others to serve as flag-men and signal-men at these crossings. ■ They all served six days each, and this action is brought to recover for such service. Two of the men assigned their claims to the plaintiff. The jury has found the value of the services, and if the law is to be executed there seems to be no other manner of doing so. The statute provides for the action in the name of the flag-man or signal-man, and as the claim is for services there is no reason why it may not be assigned. The value of the services was properly left to the jury.
The judgment should be affirmed, with costs.
BarNakd, P. J:A right of action carries with it the right to assign. The statute gave the right to recover for services rendered, upon the appointment of the highway commissioners, against the defendant upon its neglect to appoint. The only serious question in the case is the failure by the plaintiff to prove the value of the services. The *440statute provides that it shall not exceed three dollars per day. The offer to prove a contract was overruled or withdrawn upon the objection of the defendant. The defendant moved for a nonsuit upon the ground that there was no such proof given, but when the judge charged the jury that they could fix the rate of the daily compensation at any sum, not .more than three dollars per day, no exception • was taken. This was a waiver of the question and the finding concludes the defendant.
In the case of Leeds v. The Metropolitan Gas-Light Company (90 N. Y., 26) there was an excejition to the charge which left the question to the jury to assess the value of time without proof of its value. The judgment should be affirmed, with costs.
Peatt, J., dissented on the ground that “ by some oversight there is no proof whatever of value or any contract proved.”Judgment and order denying new trial affirmed, with costs.