concurs in the dismissal of the appeals from the order but
otherwise dissents and votes to affirm the judgment, with the following memorandum: On the motion for summary judgment the defendant county proved that the highway in issue was not a county road. No opposing evidence was produced by the plaintiffs that in fact the highway was a county road. The affidavit submitted on behalf of the defendant town did not state that the highway was a county road, and it did not deny that in fact the highway was a town highway. A town is liable for damages resulting from defects in a town highway (see Highway Law, § 270; Town Law, § 65, subd 2)—a liability first created in 1881 (L 1881, ch 700; see Rupert v Town of West Seneca, 293 NY 421, 424-429). A county is liable only where by law it "has charge of the repair or maintenance of a road, highway, bridge or culvert” (Highway Law, § 139; Woodcock v County of Niagara, 52 AD2d 1087). No liability is thrust upon the county for defects in a town highway under subdivisions 2 and 6 of section 102 of the Highway Law, which provides for the general power placed in the county superintendent to visit and inspect town highways when requested in writing by the town superintendent, or to approve plans and specifications for the construction and maintenance of town highways. A county has no obligation imposed by law to repair or maintain a town highway (Malcuria v Town of Seneca, 66 AD2d 421, 424), and consequently, summary judgment in favor of the county dismissing the complaint was proper, unless the plaintiffs were able to show that the county had affirmatively undertaken the responsibility for the maintenance and repair of the town highway in issue. The plaintiffs in their opposing papers did not show such an affirmative undertaking by the county. The plaintiffs merely showed that the county supplied police to patrol vehicular traffic on all roads in the county. However, the plaintiffs claim damages arising from the defective construction and maintenance of the highway, not from any negligence of the county police. The liability sought to be enforced by the plaintiffs, accordingly, does not belong to the county. Hence, I would affirm the judgment.