I concur in the résult, but I am not prepared to assent to all tlie views expressed in the foregoing opinion. It is perfectly clear that the plaintiff is entitled to recover the damage sustained, either from the town or borough. The real contest, therefore, is between the town and the borough. It is equally clear that the negligence which 'caused the injury ivas in fact the negligence of the town and not of the borough, and consisted in leaving tlie road in an unsafe condition over night, while being repaired, and not in neglecting to repair.
The- obligatió'n to maintain the highways generally is imposed upon the defendants, by general statute, which, primá 'facie, establishes their liability in this action. It is said, however, that a clause in the amendment to the borough charter,.p'assed in 1858, transfers the duty of maintaining the highway in question from the town to the borough. I think that clause Will admit of, and perhaps requires, that construction;'but it is a private act, affecting only the town and the *213borough, and neither corporation has ever put that construction upon it. On the contrary, both parties, the town and the borough, have practically construed it otherwise. The defendants for more than fourteen years after the amendmoi i of the charter, and until after the injury, continued to repair the highways within the borough, at their own expense, precisely as they had done before, and in one instance paid damages for an injury caused by their neglect so to do. The inhabitants of the borough have acquiesced in such action by the town, and, presumptively, have paid their highway taxes into the town treasury. The amendment, construed as the defendants now contend that it should be, never in fact went into operation until after the commencement of this suit. The practical interpretation thus put upon the charter doubtless induced the plaintiff, who is not supposed to he familiar with the private acts, to believe that he must look to the town for redress. Having done so, and established his claim, it is inconsistent with my notions of justice to permit the defendants now to deny their liability; especially as the equities against them are so strong, and the defense is so purely technical.
Seymour, O. J., and Foster,- J., concurred in advising judgment for the plaintiff.