SUPREME COURT.

#### Mary A. Hines, appellant, agt. The City of Lockport, respondent.

The *common council*of the city of Lockport, have the *power*and it is their *duty*to make and repair *crosswalks*in that city. These are not left to be inferred, but are expressly givenand imposed by the charter. And the city is liable for whatever damages individuals may sustain by reason of the omission to keep in repair such crosswalks.

The common council, in addition to the powers mentioned above, have (by their charter), that of commissioners of highways of towns, and under that power it is the imperative duty of the common council to cause crosswalks, &c., to be repaired and if it is not done, the city is liable for any personal injuries to any one by reason of such neglect.

The language of the charter is permissive—the common council may regulate, &.c. But this does not authorize the common council to *omit, in its discretion*to perform the duty, and not be liable for damages resulting from such omission. Such is not the law.

If the common council, in their discretion, make a new street, sidewalk, crosswalk, &.C., the same discretion require it to keep them in repair, or become liable for the consequences, in case of neglect.

If the common council desires to exempt itself from liability by reason of the want of funds, it must prove the fact, and unless proved, it is liable.

*Fourth Judicial Department.*

Syracuse, *General*Term, *May,*1871.

*Before*Mullin, P. *J.,*Johnson *and*Talcott, *JJ.*

This was an appeal by the plaintiff from a j udgment entered on report of a referee, dismissing the complaint, with costs. The report of the referee is as follows:

*To the Supreme Court of the State of New York:*

The undersigned, to whom, by an order dated the 6th day of October, 1670, the issues in this action were referred to the undersigned to hear, try and determine the same, begs leave to- report: That he has been attended by the plaintiff and her attorney and counsel, and by the attorneys *436and counsel of the defendant, and has taken the evidence on behalf of the respective parties touching the questions of fact involved, respectively submitted by them on their behalf ; and after hearing the arguments of the counsel of the respective parties thereupon, and after due consideration thereupon had, finds and determines as questions of fact.

*Frst.*That in August, 1867, Spring street, running northerly and southerly, and Chesnut street, running easterly and westerly, intersecting each other, were public highways in the city of Lockport, and in that month, under the direction of the common council of said city, a plank "cross-walk was built across Spring street, along the northerly line of Chesnut street, by the parties deemed by said common council to be benefited thereby.

The east part of the walk was constructed by laying two courses of three-inch oak plank, extending westerly from the sidewalk across the gutter or ditch on the easterly side of Spring street.

The interior edges of these planks were crooked, so as to leave immediately over the gutter an opening between the planks some four inches wide and several feet long, tapering, to the extremities. This opening, at the time the walk was constructed, was closed by fitting in a piece of plank, which was fastened with a spike. This crosswalk was built in a proper and substantial manner and was, at the time of its completion, in all respects safe.

About a year after the completion of the walk, the two planks in question became loosened from their fastenings and the piece which had been put in to close up the open-ing between them was, by some unknown cause, removed, leaving an opening between the planks in question, varying at times, from four to six inches in width, as the planks worked apart after being loosened. This opening rendered the sidewalk in question dangerous to persons passing, over it, particularly in the night time.

On the 30th of June, 1870, in the night time and during *437a severe thunder storm, in the darkness, which was great, except when lighted by flashes of lightning, the plaintiff, in passing along the crosswalk in question, without knowing its dangerous condition and without fault or carelessness on. her part, accidentally stepped through the opening between the planks in question, into a deep gutter or ditch beneath, which caused her to fall heavily, and to severly injure one foot and leg and one arm and shoulder of the plaintiff.

. The crosswalk in question had been in this dangerous condition for about one- year prior to the injury of the plaintiff, and its dangerous condition during that time had been plainly visible to all who passed that way in the day time.

The defendant had not been expressly notified of the dangerous condition of this crosswalk before the injury of the plaintiff, but its dangerous condition had existed for so long a time, plainly to be seen by all passing that way, that the defendant had thereby, and before the accident, constructive notice of such condition of said crosswalk.

The injuries received by the plaintiff on the night in question, were not occasioned by nor contributed to by any negligence on her part, but her injuries were aggravated by neglect on her part afterwards. These injuries were not, probably, of a permanent character, but they necessarilly caused her much pain for several weeks, -during which she was, for a part of the time, confined to her room, and thereby was unable to pursue her usual •avocation. She was a painter, paper-hanger and laundress, •and was and is dependent upon her labor for support. In •order to be cured of her injuries she also necessarily employed medical aid, and procured medical applications at' •considerable expense to her. That in consequence of the, injuries the plaintiff received on the night in question, she •suffered damages, for which the sum of three hundred dollars would be a reasonable compensation.

*Second.*As conclusions of law, I find that the common *438council of the city of Lockport has, under its charter, discretionary powers to direct, by ordinance, the crosswalks within the city to be repaired, and to cause an assessment of the expense of making such repairs, to be made on the property deemed to be benefited thereby, and not otherwise.

That the failure of the common council of the city of Lockport in the exercise of its discretionary powers to direct the repairs of the crosswalk in question, to be made so as to remedy its dangerous condition, does not render the city liable to the plaintiff for the damages- which she has sustained in consequence of such inj uries as she received by reason of the dangerous condition of the crosswalk.

. That the plaintiff’s complaint be dismissed, and the defendant have judgment accordingly, with costs.

Dated November 7th, 3 870, A. W. Brazee, referee.

S. W. Lockwood, *for appellant.*

I. The defendant is a municipal corporation, incorporated) under chap. 365, Laws of 1865. A municipal corporation is bound to keep its streets, sidewalks and crosswalks in a safe condition for public use, and free from dangerous defects, which vigilance and care can detect and remove. A person may walk or drive in the darkness of the night,, relying upon the belief that the corporation has performed its duty, and that the streets or walks are in a safe condition. The person walks by faith, justified by law, and if his faith is unfounded and he suffers an. injury, the party in fault must respond in damages *(Davenport*agt. *Ruckman and The Mayor of New York, 37 N. Y.,*568; *Furzee*agt. *New York City, 3 Hill,*612; *Storrs*agt. *City of Utica,*17 *N. Y.,*104 ; *Conrad*agt. *The Village of Ithica,*16 *N. Y.,*158; *Hutson*agt. *Mayor, &c., New York,*9 *N. Y.,*163*Hickock*agt. *Village of Plattsburgh,*16 *N. Y.,*161 ; *Weet*agt. *The Trustees of the Village of Brockport (opinion by Jus**439*tice Selden),*16 *N. Y.,*161 ; *Clark agt. The City of Lockport,*49 *Barb.,*580 ; *Wallace*agt. *The Mayor, &c., New York, 2 Hilt.,*440 ; *Rochester Lead Co.*agt. *City of Rochester,*3 *Comst.,*463.

*By ch.*824, *Laws of*1867, *Title*5, § 1 *(as amended), “*The common council shall be commissioners of highways for said city. They may regulate, repair, amend, alter and clean the streets, alleys, highways, bridges, side and crosswalks, drains, sewers, wharves, piers, docks, canals and slips in said city, and prevent the incumbering of the same in any manner, and protect the same from encroachments and injury. They may direct and regulate the planting, rearing and preserving of ornamental trees in the streets and parks of said city. But nothing herein contained shall prevent the improving of highways by local assessment.”

The referee, in his findings as conclusions of law, seems to have overlooked the express powers granted to the common council, as commissioners of highways for said city, to repair the crosswalk in question according to the abovesection, and does not make any distinction on that account, which has been recognized by well settled authorities, heretofore cited *(see Clark*agt. *The City of Lockport,*48 *Barb.,*580, *and cases there cited).*

The defendant is provided with a superintendent of streets *(chap.*365, *Laws of*1865, *title*4, § 12).

The defendant has power to direct the making, curbing, repairing streets, sidewalks and crosswalks *(Laws of*1865, *chap.*365, *title*3, § 8, *sub.*17, 19, 22, 28).

Where a municipal corporation is empowered by its charter to keep its streets and walks in repair, it is bound to do so ; although the language is that of permission and not of command, its nature is plainly imperative *(Hutson*agt. *Mayor, &c., of N. Y.,*9 *N. Y.,*163, 168, 169 ; *Furzee*agt. *N. Y. City,*3 *Hill,*612 ; *Adsit and others*agt. *Brady,*4 *Hill,*630 ; *1st Denio,*601).

The defendant is expressly empowered to make, or order *440and direct the making of, general or local improvements in the streets, lanes or alleys of said city (see *charter of defendant, §*1, *sub.*8, *title*3, *Laws of*1865).

The crosswalk in question was in .the street or highway and part and parcel thereof; it was constructed across Spring street.

If- the crosswalk in question is to be considered, in effect, a sidewalk, then it is a part of the highway (see *Wallace*agt. *The Mayor, &c., of New York,*2 *Hilt.,*440; *Davenport*agt. *Ruckman,*37 *N. Y.,*573).

Although the corporation may, by ordinance, impose the duty of reparing sidewalks or crosswalks upon the adjoining owners, this does not relieve the corporation from the liability *(Wallace*agt. *Mayor, &c., of N. Y.,*2 *Hilt.,*450— 451).

The defendant is provided with a highway fund of $2,500 a year to defray incidental expenses in repairing the highways *(Laws of*1869, *chap.*835, § 1, *of title*7 *(as amended), page*2007).

*Section*18, *title*5 *of said charter, Laws of*1867: *u*The moneys collected for poll tax shall be used for highway purposes, and the commissioner of streets shall be an overseer of highways,” &c.

The crosswalk in question extended over a deep gutter or ditch. It is submitted that it may properly come under additional § 21, *to title*5, *Laws of*1869, *chap.*835, as follows: *f‘*The common council may construct, repair and maintain bridges, culverts and reservoirs,'at the expense of the city,’ &c.

If the defendant had a discretionary power to build the crosswalk in question, or to have compelled the adjoining owners to build, yet having acted under the power granted, they were bound to see that it was kept in a safe condition of repair; though the language of the statute may be permissive or discretionary, yet it is plainly imperative *(Hutson*agt. *Mayor of N.*Y., 9 *N. Y.,*167, 168, 169).

*441II. The referee, in deciding the case in question, has, undoubtedly, based his conclusions of law upon the theory advanced in the cases of *Hart*agt. *The City of Brooklyn*(36 *Barb., 226); Cole*agt. *The Village of Medina (27 Barb, 218); Peck*agt. *The Village of Batavia*(32 *Barb.,*634). I think it will be conceded that Judge Marvin, of the 8th judicial district, who gave his opinion in the two cases last mentioúed, has decided’ the case of *Clark*agt. *The City of Lockport*(49 *Barb.,*580), adverse to his theory in those cases. He yields to the principle advanced in the confirmation of the Plattsburgh case by the court of appeals.

The case of *Hart*agt. *The City of Brooklyn (36 Barb., 226)*is not a parallel case with the one in question. The powers granted to the common council of the city of Brooklyn in relation to the side or crosswalks, is extremely limited *(Laws of*1834, *chap. 92, §26, sub. 16 and*20) The common council is nowhere made commissioners of highways *for said city.*The main powers granted in relation to side or crosswalks, is as follows: “ To direct and regulate the flagging of sidewalks, or laying the same with brick, to prevent encumbrances on the same, and to compel the keeping of the same cleared and free from snow, ice or dirt, and to direct the sweeping and cleaning of streets by the persons owning or occupying premises fronting thereon.”

III. The referee has decided that the defendant is not liable to the plaintiff for the injuries she has sustained, upon the theory that the defendant, under its charter, has discretionary powers to direct, by ordinance, the crosswalks within the city to be repaired. If such discretionary powers be a release of the defendant’s liability, then the gross abuse of such discretionary powers is equally without a remedy for the person who may suffer inj uries by the defendant’s neglect to repair.

A dangerous defect in a sidewalk or crosswalk may, according to this theory, exist for years, and be especially notorious to the observation of the common council, but *that**442*discretionary power*would be the shield against the damages resulting through such" gross neglect.

By the acceptance of the privileges and franchises granted in the charter of the defendant, and the ample means provided for the agents’and servants of the defendant to keep in repair the crosswalk in question, parties have the right to expect that while they are pursuing their avocations, the officers 'of the defendant have performed their duty. And if a person be maimed for life, or receive a se'vere injury, like the plaintiff in this case, through the neglect of such officers to perform their duty, the defendant, according to the authorities heretofore cited, should respond in damages. Though the plaintiff be poor, yet with a positive conviction that the referee who has decided against her in this case, is in error in his conclusions of law, she therefore resorts to this appeal, relying upon the belief that the law, based upon more solid and equitable principles will afford compensation to her for the injuries received.

James F. Fitts, *for respondent.*

I. These'findings of fact at once place this case outside of that numerous class, in which it has been held that a municipal corporation is liable to private damages resulting from the carelessness, unskillfulness, or negligence of such corporation or" its agents in the original construction or repairs of public works. In other words, that when- the’ corporation undertakes to exercise its powers, it must do so with due care and skill. *(See Conrad*agt. *The Trustees of*Ithaca, 16 *N. Y.,*158; *Rochester White Lead Company*agt. *City of Rochester,*3 *Comst.*463; *Lloyd*agt. *Mayor, &c., of New York,*1 *Seld.,*369).

In the case at bar, the defendant did not repair, nor undertake to repair said crosswalk. This action is brought upon the theory that defendant is legally bound to make such repair. But,

*443II. The city of Lockport has bylaw *discretionary, judicial*powers, relative to the making and repair of sidewalks and crosswalks within its corporate limits. Its failure in any case to repair, is simply a legitimate exercise of such power, and it can incur no liability for private damages therefor, *(See Chap.*824, *sec.*1, *Laws of*1867, *Chap.*542 *Laws of*1866, “ *Of Local Improvements,” pages,*1162, 1163, 1164, *Secs.*1, 3, *and*5).

Other acts relating to the city of Lockport are *(Chap,*365, *Laws of*1865 ; *Chap.*809, *Laws of*1868.)

The provisions referred to are, briefly, that the common council, of said city, *may*repair crosswalks; that any such repair (the same being a local improvement) *shall be*equally assessed upon the property benefited; and that, the same being one of those local improvements that can be made by the persons interested, they must have thirty days notice to make the same, when, the same not being made, the work may be let, and the expense shall be a lien on the property assessed. It cannot be assessed upon all the property in the city, nor paid out of any general or other fund, nor can it be made by the city in the first instance. The referee’s conclusions of law, are based upon these statutes, and decisions hereinafter referred to.

The crosswalk in question was a local improvement. The referee finds that it was built by the parties deemed benefited thereby. It could only be repaired in the same manner.

The following cases are relied upon by respondent as conclusive against its liability in this ease. *(Cole*agt. *Trustees, of Medina,*27 *Barb.,*218 ; *Peck*agt. *The Village of Batavia,*32 *Barb.,*634; *Hart et. al.*agt. *The City of Brooklyn,*36 *Barb.,*226).

And the law, as settled by these cases, has been fully approved by the court of appeals. *(See Mills et. al.*agt. *City of Brooklyn,*32 *N. Y.,*496, 497, 498), in which the court adopts this doctrine of discretionary or judicial *444powers, and cites the opinion in *Cole*agt. *Medina, (supra),..*with approval. See also opinion of Beardsley, J., in *Wilson*agt. *The Mayor, &c., of.N. Y.,*(1 *Denio,*599).

III. It may be contended by appellant that the court of appeals has settled the principle that where the legislative officers of a municipal corporation are made by law commissioners of highways of their municipality, the liability for damages resulting from non-repair of *streets*is positive. See case of *Detroit*agt. *Blakeby, (Am. Law Register for November,*1870), in which all the New York cases are collected and reviewed, and a contrary conclusion reached.

The cases are few and -unsatisfactory, however, which hold municipalities to such liability for *non-repair.*And in the general term cases cited, the distinction is carefully drawn between streets and side or crosswalks. The duties of municipal officers, as commissioners of highways, do not relate . to walks. The case of *Davenport*agt. *Ruckman and Mayor, &c., of New York,*(37 *N. Y.,*568), may be cited by appellant as holding municipal corporations liable for non-repair of walks.

That case relates'to the city of -New York alone, where, for obvious reasons, the corporation is .held to much more strict duty in this respect than other municipalities. See opinion in this case in the court below, (Superior Court, City N. Y.,) (16 *Abb.,*341), in which the difference between the municipal powers of New York, and those of Brooklyn, Medina and other places, where the provisions of the charter are similar to those of respondent, is carefully pointed out; where New York, is held liable because the powers of its corporation in this respect are ample, while in the other places they are restricted; and which cites the cases of *(Cole*agt. *Medina, Peck*agt. *Batavia, and Hart*agt. *Brooklyn),*with entire approval.

Therefore, the indorsement by the court of appeals of the doctrine of non-liability of these corporations, for failure to exercise powers which are discretionary or judicial, as *445made in *Mills agt. Brooklyn, (supra),*is not in the least disputed by the opinion or judgment in *Davenport agt. Ruckman,*and must be regarded as an authoritative application of the principle claimed to such corporations as respondent.

IV. A class of cases may be cited by appellant, holding that the grant to a mu ncicipal corporation of a power, which may be for the benefit of the public, implies a duty which may be insisted on.

But these cases carefully except those corporations-*ft*where the powers have been so limited to accomplish the object that the courts have considered their duty resting in too much doubt to render them liable, or that the duty was not imposed at all, by an omission to give them the means necessary to accomplish the object.” (See opinion of Mason, J., in *Hutson*agt. *The Mayor, &c., of New York,*(5 *Seld.,*170).

The judgment entered on the report of the referee should, therefore, be affirmed, with costs.

*By the court,*Mullin, P. J.

It is found by the referee, that the defendant by its officers, in August, 1867, caused to-be constructed across Spring street, in the city of Loekport a crosswalk consisting of two planks, the interior edges of which were so crooked as to leave an opening between them across the gutter, four inches wide and several feet in length. This opening was filled when the walk was made, with a piece of plank which was kept in its place by spikes, so-that when the walk was completed it was safe, and in good repair.

In about a year after the completion of the walk, the planks of which it was constructed, became loosened, and the piece of plank which had been put between them to-fill the opening, was in some way removed, and a hole left between the planks, of from four to six inches in width. This opening rendered the walk dangerous to persons passing over it, and especially so in the night.

*446On the 30th June, 1870, in the night time, and ¡during a severe thunder storm, and while it was very, dark, except when lighted by the flashes of lightning, the plaintiff attempted to pass along this walk, fell through and sustained injury to the extent of $300.

The walk had been in a dangerous condition for about a year, and that fact was known to the common .council.

The referee held as a conclusion of law, that,as;it was¡jn the discretion of the common council to direct the repairs of crosswalks in said .city, it is not liable, because of -the neglect or refusal to exercise snch discretion, ;and he ¡therefore, ordered judgment, dismissing plaintiff’s complaint.

If this conclusion of the referee is a correct exposition of the law relating to the powers and duties of the common council of Lockport, the inhabitants of that city are of all men, the most miserable.

The proposition comes to this, the common council may make or cause to be made, streets, sidewalks, crosswalks, culverts, sewers and drains, and it is, thereafter, relieved from all liability in respect thereto, notwithstanding the streets and walks may be washed away by floods, the sewers, &c., fall in by reason of defective construction, or filled for want of proper care, and the inhabitants whose business calls them into the streets at night, and without fault, fall into the opening in the streets, or sewers, and are thereby injured, must bear the loss, because the common council have not seen fit to exercise the discretion vested in them by the charter, and cause the defects in the streets to be repaired.

It rests entirely in the discretion of the common council, when a new street is to be put in condition for public use, when a new side or crosswalk is to be laid, or street paved, sewered or drained, and the manner in which such work is to be done.

It is also a matter resting in discretion whether any and if any, what part of the work, or expense of making a *447local improvement shall be done or borne by the city, and how ranch by the persons benefited. *{Section*10 *of Chap.*835, *of the Laws of*1869).

This is, I apprehend, the extent of their discretion.

The first, and one of the most important questions arising on this appeal is, whether the common council has the power to make, or repair cross and sidewalks in said city.

That it has the power to make and repair streets is not questioned.

A cross walk lies in the street, and is a part of it; when it is out of repair, the street is out of repair, and the person or corporation bound to repair the street is bound to repair the crosswalk, or which is the same thing, the part of the street on which it lies must be made so as that teams and persons may pass over it safely.

Where there is a sidewalk on either side of the street, the crosswalk lies between them and within the space set apart for teams, and is intended to furnish the foot passengers a convenient passage over the gutters on each side of the street.

In *Graves*agt. Otis, (2 *Hill,)*it was held that the commissioners of highways had control of the whole space set apart as a street, and it must follow that it is their duty to keep such space in repair. This does not mean that they- are required to construct side or crosswalks, but if the latter is constructed it is the duty of the commissioners to keep in repair that part of the street in which it lies.

But the power and the duty of the corporation of Lock-port, to make and repair crosswalks are not left to be inferred. They are expressly given and imposed by the charter.

By *sub.*17 *of*§ 8 *of title*3, the common council has power to direct the making, curbing, repairing, macadamising, paving graveling and fllagging of any of the streets, alleys, sidewalks and crosswalks in said city.

*448The statute does not say in terms to whom the discretion shall be given, whether to the street superintendent or to the persons locally benefited by the work.

The discretion is to be given to the superintendent in three cases:

Is#. When it is the duty of the common council to do the work, (1 charter, *§*12, *title*4).

*2d.*When the work to be done is a local improvement, and the expense to be assessed upon and paid by the persons benefited.

3cZ. When the work is such as may be done by individuals, and they omit to do it within the time allowed for that, purpose, (charter, § 3, *title*6).

Individuals are permitted to do such part of the work in making such local improvements as may be assessed to them by the assessors, when the work is of such description as it may be done by those interested severally, *{same %).*

In this case the common council, although cognizant of the defects in the walk, gave no direction to any person or officer to repair the walk, and thus a duty clearly imposed has been as clearly neglected.

Whether the city is liable to the plaintiff by reason of such omission is the question to be hereafter considered.

The proposition is repugnant to every man’s sense of right and justice, that the common council of Lockport, or of any other city, can construct a crosswalk in a public street, knowingly suffer it to be out of repair until a traveller breaks a limb, or suffers some other great bodily injury by reason of defects in it, and nevertheless be exempt from all liability for such gross culpable negligence. If the statute imposes the duty to build, and yet deprives them of the power, or what is the same thing, deprives them of the means to repair, the legislature and not the corporation is liable. But, when there is no such want of means or power, if the crosswalk is built it must be kept in repair. If there *449is no power to repair a walk, it ought not to be built, and those building under such circumstances are deserving of the severest condemnation.

But, if I am wrong in supposing the duty of repairing crosswalks is, in terms, imposed upon the common council by the charter, and it has no discretion whether it will repair a walk that has become dangerous to travelers, it has, in addition to the powers mentioned above, that of commissioners of highways of towns (§ 1, *title 5 of*charter), and under that power, it is the imperative duty of the common council to cause crosswalks, &c., to be repaired, and if it is not done, the city is liable for whatever damages individuals may sustain by reason of such omission.

The section referred to is in the following words : *u*The common council shall be commissioners of highways of said city, they may regulate, repair, amend, alter and clean the streets, alleys, highwas and bridges, cross and side walks# drains, sewers, wharves, docks, piers, canals, and slips in said city.”

But nothing herein contained shall prevent the improving of highways by local assessment.

More extensive powers over the streets, cross and sidewalks could not be well conferred, and the only limitation is that notwithstanding the power is thus given to the corporation, the expense of improving the streets may be imposed upon the'persons benefited.

The duty of making the improvement rests with the corporation, but the expense instead of being a charge upon the city treasury, may be imposed upon those deriving benefit from the improvement.

The language of the charter is permissive, *‘e*The common council may regulate,” &c., and therefore it is insisted, that it may omit, in its discretion, to perform the duty, and not be liable for damages resulting from such omission. Such, however, is not the law. The true rule is laid down in *Hutson*agt. *Mayor*(5 *Seld.,*163). It is there said that whea *450& public body is clothed with power to do an act, which the public interest requires to be done, and the means of performance are placed at its disposal, the execution of the •power maybe insisted on as a duty, notwithstanding the statute conferring it is only permissive *(The Mayor, &c.,*agt. Hurze, 3 *Hill.,*612).

. It was for a long time considered by the profession as doubtful, whether the commissioners of highways of towns were liable for injuries resulting from their neglect to k¡eep the roads and bridges in their towns in repair; it has, however, been finally settled, that they are not liable, unless they have in their hands funds applicable to such repairs *(Garlinghouse*agt. Jacobs, 29 *N. Y.,*297).

But, when the common council of a city, or the trustees of a village, are made commissioners of highways, the duty to repair the streets becomes imperative, unless they not only have not funds applicable to that use, but have not by the charter the power to raise them *(West*agt. *The Village of Brockport,*16 *N. Y,*159 ; *note to Conrad*agt. *Trustees of Ithaca).*

In *Hickock*agt. *The Trustees of Plattsburgh*(15 *Barb.,*427), the corporation was sued for damages sustained by the plaintiff in falling, in the night, into a trench dug in one of the streets of the village, which was left without lights or guards, notwithstanding the existence of the trench was known to one of the trustees. The trustees were, by the charter, made commissioners of highways, and it was shown that there remained unapplied 800 out of 1,000 days highway labor assessed on the inhabitants. The plaintiff was nonsuited on the ground, that the trustees, as commissioners of highways, were independent officers, and the corporation was not liable for their neglect of duty. This judgment was reversed by the court of appeals, as appeared-■by the statement of Denio, J., in *Conrad*agt. *Trustees of Ithaca,*on the ground that the corporation was liable for the neglect of duty of the trusteesj that they were not inde*451pendent officers, but stood to the corporation in the relation ■of a servant to his master, liable to the same extent as a master would be for the misconduct of a servant.

In *Conrad*agt. *The Trustees of*Ithaca, the court of appeals adopted the opinion of Selden, J., in *West*agt. *The Village of Brockport,*as a correct, exposition of the law applicable to the liability of corporations and individuals upon whom the sovereign power has conferred by grant or -charter, the obligation to perform the duties for the benefit of the public.

The distinction between the liability of commissioners •of highways of towns and of corporations, whose trustees or common council are declared by charter to be commissoners of highways, is thus stated by Selden, J., *(<*whenever an individual or corporation for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable in case of neglect to perform such covenant, not only to indictment, but to private action at the suit of the person injured by such neglect. In all such cases, the contract made with the government is deemed to inure to the benefit of every individual interested in its performance.”

Again, he says : *u*The liability of municipal corporations for the acts of trustees made by the charter, commissioners of highways, is not that of commissioners depending on whether or not they have funds applicable to the use, but is an absolute liability resulting from a contract with the sovereign power, implied from the acceptance of the charter that they would perform the duties thereby imposed upon them.” Denio, J., says: in *Conrad*agt. *The Trustees of Ithaca,*“ that it was held in the case of *Hickock*agt. *The Trustees of Plattsburgh*to be a corporate duty to keep the streets in good condition.”

It seems to me, that the principles thus settled by the court of last resort, establish the liability of the city of *452Lockport, for the neglect of its common council to keep the crosswalk in question in repair, provided the common-council had funds which it could appropriate to that use, or power to raise them.

The next, and only remaining inquiry is, whether the common council was furnished with funds that it could apply to the repair of the crosswalk in question. Section , title 5 of charter, provides, that $2,500 of the monies raised by the common council, and no more except as thereinafter provided, may be used to defray the expenses of repairing and keeping in order the highways, sewers, bridges and .public grounds of the city. By § 18 and 19, each male inhabitant above the age of twenty-one years, not assessed for real or personal property in said city, and not paupers or lunatics, are obliged to pay one days’ poll tax which might be commuted for one dollar, to be applied in addition to the sum named in the proceeding section, to the repair of the highways.

How much arises from the poll tax we do not know, but it must be assumed that proceeds sufficient to make all ordinary repairs of streets and crosswalks are furnished.

Under these circumstances, it was incumbent on the defendant to show, if it could be shown, that there were not funds applicable to the repairs of*the crosswalk in question. They have the means of showing the exact condition of the highway fund at any and all times, while the citizen cannot be presumed to have any knowledge on the subject.

The commissioners of highways of towns owe no duty to individuals to keep the highways in repair, unless furnished with funds, to subject them to liability. That .fact must be alleged and proved by the party seeking to charge them. But when the trustees of towns, or the aldermen of eities, are made commissioners, they are liable for neglect of duty, unless the charter withholds from them the power to raise funds, to keep streets, &c., in repair.

If any means are furnished to them, which they are au*453thorized to apply to repairs, and if the corporation desires to exempt itself from liability by reason of the want of funds, it must prove the fact, and unless proved it is liable.

If the repair of crosswalks is not a charge on the city treasury, but is to be deemed to be a local improvement, and as such the expense is to be borne by those benefited, the city is still liable for damages resulting from neglect to keep them in repair. Its power to direct the repair does not depend upon the consent of the people, or any portion of them. The common council have but to make the order, and the work must be done, and the property benefited must pay the expense, or the persons liable to be assessed must do the work themselves.

There is, therefore, in any contingency, ample means accessible to the common council with which to do the work, and, upon every principle, the city should be liable if it is not done.

The judgment of the referee is reversed, and a new trial granted, costs to abide the event.