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 Lock-port, 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 [380]*380several feet in length. This opening was filled when thé 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. On the 30th of 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 in the discretion of the common council to direct the repairs of crosswalks in said city, it was not liable because of the neglect or refusal to • exercise such discretion; ' and he therefore ordered judgment dismissing the 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 become filled for want of proper care, and the inhabitants whose business calls them into the streets at night, and who, without fault, fall into the opening in the streets- or [381]*381sewers, 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 local improvement, shall be done or borne by the city, and how much by the persons benefited. (Laws of 1869, ch. 835, § 10.) 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 crosswalk lies in the street, and is a part of it; when it is out of repair, 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 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 v. Otis, (2 Hill, 466,) 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 are constructed, it is the duty of the commissioners to keep in repair that part of the street in which they lie.
[382]*382But 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 subdivision 17 of section 8 of title 3, the common council has power to direct the making, curbing, repairing, macadamizing, paving, graveling and flagging of any of the streets, alleys, sidewalks and crosswalks in said city. The 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 : 1st. When it is the duty of the common council to do the work. (1 Charter, § 12, tit. 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. 3d. 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, tit. 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 may be done by those interested severally. (Id. § 3, tit. 6.) 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, a 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 traveler 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 [383]*383them 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 is 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 their 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.
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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 Lock-port, 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 [380]*380several feet in length. This opening was filled when thé 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. On the 30th of 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 in the discretion of the common council to direct the repairs of crosswalks in said city, it was not liable because of the neglect or refusal to • exercise such discretion; ' and he therefore ordered judgment dismissing the 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 become filled for want of proper care, and the inhabitants whose business calls them into the streets at night, and who, without fault, fall into the opening in the streets- or [381]*381sewers, 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 local improvement, shall be done or borne by the city, and how much by the persons benefited. (Laws of 1869, ch. 835, § 10.) 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 crosswalk lies in the street, and is a part of it; when it is out of repair, 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 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 v. Otis, (2 Hill, 466,) 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 are constructed, it is the duty of the commissioners to keep in repair that part of the street in which they lie.
[382]*382But 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 subdivision 17 of section 8 of title 3, the common council has power to direct the making, curbing, repairing, macadamizing, paving, graveling and flagging of any of the streets, alleys, sidewalks and crosswalks in said city. The 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 : 1st. When it is the duty of the common council to do the work. (1 Charter, § 12, tit. 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. 3d. 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, tit. 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 may be done by those interested severally. (Id. § 3, tit. 6.) 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, a 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 traveler 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 [383]*383them 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 is 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 their 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: “ The common council shall be commissioners of highways of said city, and they may regulate, repair and amend, alter and clean the streets, alleys, highways and bridges, cross and sidewalks, 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, “ the common council may regulate,” &c., and therefore it is insisted [384]*384that 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 rule is laid down in Hutson v. Mayor &c. of New York, (5 Seld. 163.) It is there said that when a 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 may be insisted on as a duty; notwithstanding the statute conferring it is only permissive. (The Mayor &c. v. Furze, 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 keep the roads and bridges in the town 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 v. 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. (Weet v. The Village of Brockport, 16 N. Y. 159; note to Conrad v. Trustees of Ithaca.) In Hicok v. 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 1000 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 Ap[385]*385peals, as appears by the statement of Denlo, J., in Conrad v. Trustees of Ithaca, on the ground that the corporation was liable for the neglect of duty of the trustees; that they were not independent 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 v. The Trustees of Ithaca, (16 N. Y. 158,) the Court of Appeals adopted the opinion of Selden, J., in Weet v. 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 corporations, whose trustees or common council are declared by charter to be commissioners 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 enure to the benefit of every individual interested in its performance.” Again, he says: “ The liability of municipal corporations for the acts of trustees made by the charter commission^ ers of highways, is not that of commissioners depending on whether or not they have funds applicable to a 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 v. Trustees of Ithaca, “ that it was held in the case of Hicok v. The [386]*386Trustees 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 Lockport, 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 crosswalk in question. The charter provides that $2500 of the moneys raised by the common council, and no more, except as thereinafter provided, maybe used to defray the expenses of repairing and keeping in order the highways, sewers, bridges, and public grounds of the city. By sections 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 day’s poll tax, which may be commuted for one dollar, to be applied, in addition to the sum named in the preceding 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. Hnder 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 [387]*387cities, are made commissioners, they are liable for neglect of duty, unless the charter withholds from them the power to raise funds to keep the streets &c. in repair. If any means are furnished to them, which they are authorized 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.
[Fourth Department, General Term, at Syracuse,
May 1, 1871.
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.
Mullin, P. J., and Johnson and Tatcott, Justices.]