I concur in the result of Mr. Justice Mebwin’s opinion, but decline to concur in the opinion itself, because I Jo not wish to commit myself to the inference that perhaps may be drawn from portions of it, that the lack of funds in the hands of a commissioner of' highways is a defense to an action of this kind.
The reasons for permitting such a defense by highway commissioners do not exist or apply to actions against a town.
Lack of funds in the hands of the commissioner was formerly a-defense to actions brought against commissioners of highways for defects in the highways or bridges under their control. The defense-*5was an affirmative one to be asserted and established by the commissioner. Actions against the commissioner were predicated upon his negligence, and, of course, if the town had neglected or refused to furnish him with the necessary moneys to keep, the highways, or bridges in repair, the imputation of negligence was rebutted.
While chapter 568 of the Laws of 1890 makes the town liable for the negligence of the highway commissioner, it does not grant to it the same defenses that a highway commissioner might theretofore assert in an action brought against him for his personal negligence. As before stated, lack of funds was an affirmative defense.
In such actions it was not necessary, in order to make out a case of negligence, for the plaintiff to establish the possession of funds by the highway commissioner. It was for the commissioner to affirmatively show tlie lack of funds, in order to relieve himself of the' charge of negligence otherwise made out' against him. The town of which he is an officer is the body that furnishes the commissioner funds to construct and maintain the highways and bridges within his jurisdiction.
To permit tlie town, in an action brought against it, because of the alleged negligence of the highway commissioner, to assert- as a defense a lack of moneys in his hands, is practically to permit such town to assert its own default or omission as a defense to the action.
By refusing to furnish the commissioner of highways the necessary funds to keep the roads and bridges under his control in proper repair, it would upon this theory escape all liability, and practically its own negligence would be its defense.
Judgment and order reversed and a new trial granted, costs to abide the event.