75 N.Y. 316 | NY | 1878
The application of the relator for a mandamus rests entirely upon the ground that the judgment was recovered against Woodruff, as a commissioner of highways of the town of Little Valley, and that it was the duty of the town auditors to audit and allow the same. In support of this position, the relator's counsel relies upon section 8, 1 R.S., 357 and 358, which relates to suits and proceedings against towns and town officers, and makes provision that "judgments recovered against a town or against town officers in actions prosecuted by or against them in their name of office shall be a town charge."
We think that this enactment has no application to the action brought against Woodruff, and the intention of the statute was to embrace cases where the act complained of against a town officer was done while acting in an official capacity, and not otherwise. The action was not for any act done by the defendant in his name of office or by virtue thereof, but for a neglect of duty in repairing the highway, which neglect was the cause of the injury complained of. Although Woodruff is named as commissioner of highways of the town of Little Valley in the complaint, and is alleged to have been such commissioner, yet no claim is made against him as such commissioner, and this allegation is inserted by way of description, and as a basis of subsequent statements, for the purpose of showing that Woodruff was bound to repair the highway; that he owed a duty to the plaintiff which he had failed to perform, and that by his negligence *319 and misconduct he caused the injury for which the plaintiff claimed damages. These averments were made in order to establish a cause of action and fix a liability against the defendant individually and not as commissioner of highways. But they present no case within the meaning of the statute which was intended to embrace actions prosecuted by and against the officers named therein, in their official capacity, and in connection with the discharge of their public duties.
The relator, not being within the statute, clearly had no claim for the relief demanded. Aside, however, from this view of the subject, there are other difficulties in the way of the relator which, we think, cannot be overcome. The town, in its corporate capacity, has no control over highways, and is under no legal obligation to keep highways and bridges in repair; and hence no recovery can be had against the town for injuries received, by reason of the negligence of its officers in failing to keep them in a safe and secure condition. (Morey v. The Town ofNewfane, 8 Barb., 645; Martin v. Mayor of Brooklyn, 1 Hill, 545; Barker v. Loomis, 6 id., 463.) Commissioners of highways receive and disburse all moneys raised for highway purposes, and lay out, discontinue, and control the same. They are also liable individually, in any civil action for any wrong they may commit, or any injury resulting from their own neglect to repair a highway, if they have funds provided for such a purpose, to any person who has sustained damages. (Hover v. Barkhoof,
The order of the General Term was right and should be affirmed.
All concur.
Order affirmed.