#### McVEE v. CITY OF WATERTOWN.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Dedication op Street—Evidence.

Where it appears that a street, indicated ou a plat tiled by a property owner, was accepted as a public highway by a resolution of the common council, that the city constructed therein a sewer extending more than one-half its length, that several houses were erected thereon, and that the street was open, and the greater portion thereof used by the public for walking and driving, the question of its dedication as a highway, by offer and acceptance, was properly left to the jury.

2. Highways—Abandonment—Burden op Proof.

Under Laws 1890, c. 568 (Highway Law) § 99, providing that a highway shall cease to be such unless “opened and worked” within six years from the time it was dedicated or laid out, the burden is on the party denying the existence of a highway once dedicated to prove that it was not worked within the required time, where the evidence shows that within such period the street had been opened, was passable for public travel, and had been used therefor.

8. Municipal Corporations—Defective Sidewalks.

Where a defect in a sidewalk on a public highway has existed for five months, it is for the jury to say whether the city authorities, in the exercise of reasonable care, should have discovered the defect and remedied it, though the walk was not built by them or under their direction.

4. Same—Construction of Sidewalk by Property Owner.

A child four years old is not deprived of his remedy against the city for injuries caused by a defective sidewalk on a public street because his uncle, in whose house the child was temporarily staying on the day of the accident, built the defective walk.

5. Negligence—Permitting Child to Play in Street.

It is not negligence, as a matter of law, for one in charge of a child four years old to permit him to be on a public street unattended.

Appeal from circuit court, Jefferson county.

Action by Clarence A. McVee, an infant, by Frank McVee, his guardian ad litem, against the city of Watertown, to recover for injuries caused by a defective sidewalk. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Edward H. Smith, for appellant.

G. S. & H. L. Hooker, for respondent.

MERWIN, J.

On October 1, 1894, the plaintiff, then being an infant about four years old, fell upon a sidewalk on Grant street, so called, in the city of Watertown, and received an injury, the dam*871ages arising from which he seeks in this action to recover of the defendant upon the ground of negligence. It is claimed by the defendant (1) that Grant street, so called, is not a public highway; (2) that, if it is, the defendant was not negligent; and (3) that plaintiff or those who had the care of him wTere guilty of contributory negligence. All these questions were submitted to the jury, and .he verdict was adverse to the defendant. On the 20th of October, 1886, the common council of the defendant adopted a resolution a copy of which is as follows:

> “Resolved, that the following named streets, Grant, Hancock, Tilden, Lincoln, and Seward, be, and they are hereby, accepted as public highways in accordance with the map thereof heretofore tiled by D. G. Griftin.”

It appears that, prior to the passage of this resolution, Mr. Griffin, then being the owner of a tract of land northerly of Main street in the northerly part of the city of Watertown, filed in the office of the clerk of Jefferson county a map or plat of the property, laid out in lots, with streets, in regular form. The streets named in the resolution are those indicated and laid out on the map. Grant street, upon the map, extended in a direct line northerly from Main street about 1,200 feet. The house, opposite to which was the sidewalk in question, was owned by one Morrill, and was built, in or prior to 1892, on the easterly side of Grant street, about 860 feet from Main street. Beyond it, northerly, there was no other house on that side of the street. On the other side of the street there were two houses further north. Beyond that, on the north, there was indication of a street for 150 or 200 feet, and beyond that point there was a fence across the street. Other houses had been built along .the street southerly of the Morrill house. In 1893, the city authorities built in Grant street a sewer, running from Main street northerly about 700 feet. There was evidence tending to show that, for several years before 1893, the street had been open and used as a street, by the public generally, for walking and driving, and to some extent further north than Morrill’s.

A public highway may be created by dedication through offer and actual acceptance. City of Cohoes v. Delaware & H. Canal Co., 134 N. Y. 397, 31 N. E. 887. The question whether a public highway has been so created is ordinarily a question of fact, as it involves the intent and acts of the owner and acceptor. Flack v. Village of Green Island, 122 N. Y. 107, 25 N. E. 267. Where a plat is made and recorded, the requisite intention on the part of the owner is generally indisputable. 2 Dill. Mun. Corp. § 636. The dedication and acceptance may be proved by the acts of the parties and the circumstances of the case. Cook v. Harris, 61 N. Y. 448. In Sewell v. City of Cohoes, 75 N. Y. 45, which was an action for negligence in not keeping a street in safe condition, and it was claimed by the city that the street had never been legally laid out and was not a legal highway, it is said (page 53):

> “Having the power to lay out streets, the omission to do it lawfully does not exonerate the corporation from liability from negligence, when its officers assume to hold out to the public that a street is located within its limits, and they are invited to use it and to travel upon it. Such a rule would com*872pel a traveler to determine for himself whether the street was lawfully laid out, and is not upheld by the case cited or supported by authority. Although the precise question discussed has never been directly presented in this state, the authorities are numerous which sustain a contrary view, as will be seen by a reference to the cases. In Mayor v. Sheffield, 4 Wall. 189, it is held that, where the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and the injury occurs by reason of negligence, the corporation cannot, when sued for such injury, defend itself by alleging irregularity in the proceedings or a want of authority in establishing the street The rule is well settled that the act of the city in assuming authority to control the land as a street renders it chargeable with the same duties, and imposes upon it the same liabilities, as if it had been lawfully laid out, and it is estopped from questioning that it was a lawful road or street. Houfe v. Town of Fulton, 34 Wis. 608; Stark v. Lancaster, 57 N. H. 88; City of Aurora v. Colshire, 55 Ind. 484; Phelps v. City of Mankato, 23 Minn. 276. In the last case cited it was held that it was immaterial whether the street became such by formal acceptance and user by the public, so far as regards the duty of the city to keep it in safe condition.”

Applying these authorities to the facts of this case, the defendant cannot, we think, complain because the question of dedication and acceptance was left to the jury.

But the defendant urges that, if Grant street became a highway in 1886, it had ceased to be such, under the statute that provides that every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public or laid out, shall cease to be a highway. . Section 99, c. 568, Laws 1890 (Highway Law), re-enacting, in substance, section 99, tit. 1, c. 16, pt. 1, Rev. St., as amended by chapter 311, Laws 1861. There was evidence that the street in question had been opened beyond the locality in question within six years from 1886. It was shown to have been worked to some extent by the city authorities in 1894, but whether or not it had been worked before 1894 does not appear, except, perhaps, by inference from the evidence that it was passable for public travel, and had been used by the public for travel within the six years, beyond the Morrill premises. As said in Beckwith v. Whalen, 70 N. Y. 435:

> “It must be opened as a highway over its entire route. It need not be worked in every part, but it must be Worked sufficiently to be passable for public travel.”

The burden of proof was on the defendant to show that the road had not been worked within the six years. City of Cohoes v. Delaware & H. Canal Co., supra; Horey v. Village of Haverstraw, 124 N. Y. 273, 26 N. E. 532. That being so, we have, I think, no right to say, as matter of law, that it was not worked within that time. So that, for aught I see, we must accept the conclusion of the jury that, so far as this case is concerned, there was a public highway .at the locality in question.

We then come to the question whether there was sufficient in the •case to justify the finding of negligence on the part of the city. It is not claimed that the sidewalk was not defective, or that the defect then existing did not cause the injury. The sidewalk was not built by or under the direction of the city authorities, and they had no actual notice of the defect, and it is claimed that, under the cir*873cumstances, the city should not be chargeable with constructive notice. The detect had, however, existed for the period of five or six months, and it was a question of fact whether the city authorities, in the exercise of reasonable care, should have discovered the defect and remedied it. “Actual notice to the proper municipal authorities of a defect is not necessary in order to charge it with negligence. They owe to the public the duty of active vigilance; and where a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.” Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43. The fact that the sidewalk was constructed without the authority of the city does not change the rule. Saulsbury v. Village of Ithaca, 94 N. Y. 27; Seymour v. Village of Salamanca, 137 N. Y. 364, 33 N. E. 304. We are referred by the defendant to the case of Griffin v. Mayor, etc., 9 N. Y. 456, as laying down a different rule on the subject of notice. So far as that case holds that actual notice is necessary, it must be deemed to have been overruled by the later cases. See Requa v. City of Rochester, 45 N. Y. 135. The question of negligence was, we think, properly submitted to the jury.

The question of contributory negligence on the part of those who had charge of the child is urged with a good deal of earnestness by the learned counsel for the defendant, but we find no good reason for taking the question away from the jury. Stackus v. Railroad Co., 79 N. Y. 464; Weil v. Railroad Co., 119 N. Y. 147, 153, 23 N. E. 487. If the aunt of the child, in whose charge he was upon the day of the injury, permitted him to be on the city street unattended, we •cannot say, as matter of law, that she was negligent. Huerzeler v. Railroad Co., 139 N. Y. 490, 34 N. E. 1101. The fact that the uncle of the child, in whose house the child was on that day staying temporarily, built the defective sidewalk, does not deprive the child of any legal remedy he may have against the city.

Our attention is called to* a number of exceptions to rulings upon evidence. We find, however, no sufficient ground for reversal. The directions given by the aunt to the child were competent on the question of contributory negligence. The right of the superintendent of public works to do the work which he did on the street appeared in the progress of the case. The evidence that one of the members of the common council knew of the locality in question was received conditionally, and no motion was afterwards made to strike it out. It is not clear that it was of any materiality as the case stood.

Judgment and order affirmed, with costs. All concur.