#### Embler *v.*Town of Wallkill.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Encroachments on Highways—Liability of Towns.

Under Laws N. Y. 1881, c. 700, § 1, imposing a liability on towns for injuries caused by defective highways in cases where the highway commissioners were personally liable at common law, a recovery can be had of a town for personal injuries sustained by reason of the branches of a tree being permitted to hang so low over the traveled portion of a highway as to leave a space insufficient for the passage of a load of hay.

Appeal from circuit court, Orange county.

Action by Henry W. Embler against the town of Wallkill. There was a verdict for plaintiff, and defendant appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*William Vanamee,*for appellant. *W. F. O'Neill,*for respondent.'

Dykman, J.

While the plaintiff was riding on the top of a load of hay •along one of the public highways of the town of Wallkill he was struck in the face by the stub of an overhanging branch of a tree, and scraped off the .load, and precipitated to the ground, and severely injured. This action was brought against the town for recovery of the damages sustained by the plaintiff by reason of such injuries, and the basis of the action is the negligence of the highway commissioners in failing to maintain the road in question in a ■condition of safety for travelers. The cause was tried at the circuit, and the .plaintiff recovered a verdict of $6,000, and the defendant has appealed from the judgment, and also from the order denying the motion for a new trial on the minutes. Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel. Such are the duties imposed upon those officers by the law, and when they are not discharged, and injury results to a traveler from a failure in their performance, without his fault, he *798lias a cause of action for the damages sustained by reason of such negligence. At the common law the towns were not liable for the negligence of such commissioners, because they are neither the agents nor servants of the town, and the commissioners were personally liable for the consequences of their own negligence; but now, in this state, the legislature has intervened by statutory enactment, (Laws N. *Y.*1881, c. 700, § 1,) and imposed a liability upon the towns in all cases where the commissioners would be personally liable. The statute is wise and salutary, and furnishes a more certain and adequate remedy and satisfaction for injuries resulting from the negligence of public officials. Upon the facts and the law this is a plain ease for the plaintiff. The tree in question stood upon the side of the highway, and its branches hung over the traveled portion of the road so low as to leave a space insufficient for the passage of a load of hay, and that condition had existed for more than 10 years. Those facts presented a case of inexcusable negligence, and there is no principle which will exonerate the town from the liability resulting therefrom. The case was submitted to the jury by the trial judge in a charge which fully explained and laid down the legal principles which controlled the case, and there was no error committed upon the trial. The point respecting the liability of the city of Middletown is untenable. The judgment and order denying the motion for a new trial should be affirmed, with costs. All concur.