Babcock v. Gifford

Learned, P. J.:

It cannot be necessary to discuss at this day the subject of the liability of commissioners of highways for neglecting to repair highways and bridges. They are liable after sufficient notice, if they have sufficient funds or are able .to procure funds. (Hoover v. Barkhoof, 44 N. Y., 113 ; Warren v. Clement, 31 S. C. [24 Hun], 472; Laws of 1858, chap. 103.) This statute imposes an affirmative duty to make repairs, and to present vouchers for the expense'at the next town meeting. The appellant insists that the place where the injury occurred is not a bridge created over a stream intersecting a highway. Some of the witnesses speak of the'place as being where flat stones were laid across a hole; others as a culvert. It is not very material what name is given to it. It was in the highway, and whether a stream ran under the stones or whether the stones lay over a hole, through which no stream ran, the defendant was equally bound to keep the place iü repair. (1 R. S., m. p. 502, § 1., sub. 4.)

The appellant further insists that the action was not maintained against the defendant individually; that if there be any negligence it is that of the board of highway commissioners.

In Bassett v. Fish (75 N. Y., 303) it was held that an action for negligence could not be maintained against the trustees of a Union free school district individually ; because the statute made them not a quasi corporation, but a body corporate. On the contrary the commissioners of highways are, at the most, but a quasi corporation. They may then be sued individually for liabilities; as they have been sued in cases above cited.

Then it is insisted that the action will not lie against one of them alone, for a negligence imputable to all. Certainly the general rule is where there are several wrong-doers any one may be sued. (Creed v. Hartmann, 29 N. Y., 591.) We do not see why a liability of several officers is not within this rule, even though they are, in some respects, a quasi corporation. They are liable personally to pay from their own individual property for their wrongful acts. Because the action is based on a personal wrong-doing. And if this be so, it seems to follow that one may be sued. The difficulty in the case of Bassett v. Fish was that the alleged wrongful act was the act of a coi’poration. Therefore it was necessary that the corporation should be sued. Here it is the act either of the defendant alone, or,, as defendant claims, of the three commissioners. We may notice in passing that in the case last cited it is suggested on page 313 that even in the case of a corporate body, if one of that body were duly charged by them with a special duty, the neglect therefor would make him personally liable to an injured person. But it is not necessary in this case to apply that rule.

We see no error in the case. The judgment is affirmed with costs.

Present — Learned, P. J\, Boardman and Bocees, JJ. :

So ordered.