Rodenbeck, J.
The claimant’s intestate met his death while driving a traction engine over a State bridge, known [619]*619as the Pecksport bridge, which spans the old Chenango canal now used as a canal feeder in the town of Eaton, Madison county, May 31, 1910.
He was working for the highway commissioner of the town as an engineer and was driving a traction engine, weighing four and one-half tons; and when nearly over the bridge the engine broke through the bridge and claimant’s intestate was killed.
The bridge was built about thirteen years before the accident, was twenty-six and one-half feet long between the abutments, fourteen feet wide and consisted of a wooden beam and truss on each side, with a needle beam through the center, with joists resting on the abutments and on the needle beam, and hemlock plank flooring.
The bridge had been repaired about a year before the accident, by placing five new girders on each side of the needle beam and reflooring the entire bridge.
As the intestate and the highway commissioner approached the bridge, they examined it and, regarding it as safe, placed timbers over the bridge lengthwise on each side for the wheels of the engine to run upon; and, while the intestate was in the cab of the engine and the highway commissioner was ahead directing his course, the bridge gave way after the rear wheels of the engine had passed two and one-half feet over the needle beam.
The liability of the State for the death of claimant’s intestate rests entirely upon statute. The right to file a claim against the State for the intestate’s death undoubtedly accrued to the claimant (Canal Law, § 47; Code Civ. Pro., § 264), but the liability of the State is limited to cases where the facts would create a legal liability were the same established in evidence in a court of justice against an individual or a corporation (Canal Law, § 4; Code Civ. Pro., § 264) ; so that, if, under the facts in the case before us, the town of Eaton would not be liable were the bridge in question a town, bridge, no liability attaches to the State.
The provision of the Code of Civil Procedure is as follows : “ In no case shall any liability be implied against the state, and no award shall be made on any claim against the [620]*620state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity.” (§ 264).
The provisions of the Oanal Law are as follows: “ There shall be allowed and paid to every person sustaining damages from the canals or from their use or management, or resulting or arising from the neglect or conduct of any officer of the .state having charge thereof, or resulting or arising from any accident, or other matter or thing connected with the canals, the amount of such damages to be ascertained and determined by the proper action or proceedings before the court of claims; but no judgment shall be awarded by such court for any such damages in any case unless the facts proved therein make out a case which would create a legal liability against the state, were the same established in evidence in a court of justice against an individual or corporation.” Canal Law, § 47.
The expression “individual or corporation,” used in the foregoing provisions, includes a town; since it was the manifest intention of the Legislature that the State should be liable upon claims made against it only where a recovery could be had on similar claims in the ordinary courts of the State against other parties. For certain purposes a town is regarded as a corporation. Gen. Mun. Law (Laws of 1909, chap. 29), § 2. The Town Law defines a town as a corporation: “A town-is a municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or may be conferred or imposed upon it by law.” Town Law, § 2.
If there is any statute which would relieve the town of Eaton from liability under the facts in this case, the same statute would operate to relieve the State. Warner v. State of New York, 132 App. Div. 611. Such a statute is found in the Highway Law: “ ¡No town shall be liable for any damages resulting to person or property, by reason of the breaking of any bridge, by transportation over the same of any vehicle and load together weighing four tons or over but any owner of [621]*621such vehicle or load, or other person engaged in transporting or driving the same over any bridge, shall be liable for all damages resulting therefrom.” Highway Law (Laws of 1890, chap. 568), § 154.
The highway laws of the State were investigated by a committee of the Legislature and a revision of these laws was presented to the Legislature of 1909 for enactment; and in the re-enacted Highway Law the provisions of the old Highway Law became section 331 of the new Highway Law, as follows: “Ho town shall be liable for any damage resulting to person or property by the reason of the breaking of any bridge, sluice or culvert, by transportation on the same of any traction engine, portable piece of machinery, or of any vehicle or load, together weighing eight tons or over, but any owner thereof or other person engaged in transporting or directing the same shall be liable for all damages resulting therefrom.” Highway Law (Laws of 1909, chap. 30), § 331.
It will be observed that one of the changes made in the section of the old Highway Law was in the maximum weight that a town bridge was required to sustain. This weight was changed from “ four tons or over,” as it appeared in the old Highway Law, to “ eight tons or over,” as it appears in the new Highway Law.
The foregoing provisions being the measure of the State’s liability, claimant is not entitled to recover. The weight of the engine alone was four and one-half tons; in addition to this weight there was upon the engine operating it the intestate who weighed 160 pounds, and the engine was drawing a road scraper which further added to the total strain on the bridge. The intestate and the highway commissioner had crossed the bridge about a year previous with the same engine, and about that time it had been repaired by placing five new girders on each side and reflooring the entire bridge. As they approached the bridge on the day of the accident they examined it and decided that it was safe to cross. They procured timber to lay upon the floor of the bridge for the wheels of the engine to pass over and placed these so that the ends of the eighteen-foot timber were some dis[622]*622tance from the abutments of the bridge. These beams as placed were an added weight to the bridge, instead of a support, as they might, have been if they had been placed from the needle beam to each abutment. As the rear wheels of the engine passed over the needle beam and about two and a half feet therefrom the engine crashed through the bridge. It appears that, there was some decay at the ends of the girders which remained after the accident hanging to the bridge, but the timbers appeared to be sound where they broke and the breaks were fresh breaks. The conclusion from the evidence is that the bridge was in safe condition for ordinary travel, but was not sufficiently strong to bear the weight of the load of four and a half tons which the intestate undertook to drive over it, and under these facts the State is not liable.
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Rodenbeck, J.
The claimant’s intestate met his death while driving a traction engine over a State bridge, known [619]*619as the Pecksport bridge, which spans the old Chenango canal now used as a canal feeder in the town of Eaton, Madison county, May 31, 1910.
He was working for the highway commissioner of the town as an engineer and was driving a traction engine, weighing four and one-half tons; and when nearly over the bridge the engine broke through the bridge and claimant’s intestate was killed.
The bridge was built about thirteen years before the accident, was twenty-six and one-half feet long between the abutments, fourteen feet wide and consisted of a wooden beam and truss on each side, with a needle beam through the center, with joists resting on the abutments and on the needle beam, and hemlock plank flooring.
The bridge had been repaired about a year before the accident, by placing five new girders on each side of the needle beam and reflooring the entire bridge.
As the intestate and the highway commissioner approached the bridge, they examined it and, regarding it as safe, placed timbers over the bridge lengthwise on each side for the wheels of the engine to run upon; and, while the intestate was in the cab of the engine and the highway commissioner was ahead directing his course, the bridge gave way after the rear wheels of the engine had passed two and one-half feet over the needle beam.
The liability of the State for the death of claimant’s intestate rests entirely upon statute. The right to file a claim against the State for the intestate’s death undoubtedly accrued to the claimant (Canal Law, § 47; Code Civ. Pro., § 264), but the liability of the State is limited to cases where the facts would create a legal liability were the same established in evidence in a court of justice against an individual or a corporation (Canal Law, § 4; Code Civ. Pro., § 264) ; so that, if, under the facts in the case before us, the town of Eaton would not be liable were the bridge in question a town, bridge, no liability attaches to the State.
The provision of the Code of Civil Procedure is as follows : “ In no case shall any liability be implied against the state, and no award shall be made on any claim against the [620]*620state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity.” (§ 264).
The provisions of the Oanal Law are as follows: “ There shall be allowed and paid to every person sustaining damages from the canals or from their use or management, or resulting or arising from the neglect or conduct of any officer of the .state having charge thereof, or resulting or arising from any accident, or other matter or thing connected with the canals, the amount of such damages to be ascertained and determined by the proper action or proceedings before the court of claims; but no judgment shall be awarded by such court for any such damages in any case unless the facts proved therein make out a case which would create a legal liability against the state, were the same established in evidence in a court of justice against an individual or corporation.” Canal Law, § 47.
The expression “individual or corporation,” used in the foregoing provisions, includes a town; since it was the manifest intention of the Legislature that the State should be liable upon claims made against it only where a recovery could be had on similar claims in the ordinary courts of the State against other parties. For certain purposes a town is regarded as a corporation. Gen. Mun. Law (Laws of 1909, chap. 29), § 2. The Town Law defines a town as a corporation: “A town-is a municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or may be conferred or imposed upon it by law.” Town Law, § 2.
If there is any statute which would relieve the town of Eaton from liability under the facts in this case, the same statute would operate to relieve the State. Warner v. State of New York, 132 App. Div. 611. Such a statute is found in the Highway Law: “ ¡No town shall be liable for any damages resulting to person or property, by reason of the breaking of any bridge, by transportation over the same of any vehicle and load together weighing four tons or over but any owner of [621]*621such vehicle or load, or other person engaged in transporting or driving the same over any bridge, shall be liable for all damages resulting therefrom.” Highway Law (Laws of 1890, chap. 568), § 154.
The highway laws of the State were investigated by a committee of the Legislature and a revision of these laws was presented to the Legislature of 1909 for enactment; and in the re-enacted Highway Law the provisions of the old Highway Law became section 331 of the new Highway Law, as follows: “Ho town shall be liable for any damage resulting to person or property by the reason of the breaking of any bridge, sluice or culvert, by transportation on the same of any traction engine, portable piece of machinery, or of any vehicle or load, together weighing eight tons or over, but any owner thereof or other person engaged in transporting or directing the same shall be liable for all damages resulting therefrom.” Highway Law (Laws of 1909, chap. 30), § 331.
It will be observed that one of the changes made in the section of the old Highway Law was in the maximum weight that a town bridge was required to sustain. This weight was changed from “ four tons or over,” as it appeared in the old Highway Law, to “ eight tons or over,” as it appears in the new Highway Law.
The foregoing provisions being the measure of the State’s liability, claimant is not entitled to recover. The weight of the engine alone was four and one-half tons; in addition to this weight there was upon the engine operating it the intestate who weighed 160 pounds, and the engine was drawing a road scraper which further added to the total strain on the bridge. The intestate and the highway commissioner had crossed the bridge about a year previous with the same engine, and about that time it had been repaired by placing five new girders on each side and reflooring the entire bridge. As they approached the bridge on the day of the accident they examined it and decided that it was safe to cross. They procured timber to lay upon the floor of the bridge for the wheels of the engine to pass over and placed these so that the ends of the eighteen-foot timber were some dis[622]*622tance from the abutments of the bridge. These beams as placed were an added weight to the bridge, instead of a support, as they might, have been if they had been placed from the needle beam to each abutment. As the rear wheels of the engine passed over the needle beam and about two and a half feet therefrom the engine crashed through the bridge. It appears that, there was some decay at the ends of the girders which remained after the accident hanging to the bridge, but the timbers appeared to be sound where they broke and the breaks were fresh breaks. The conclusion from the evidence is that the bridge was in safe condition for ordinary travel, but was not sufficiently strong to bear the weight of the load of four and a half tons which the intestate undertook to drive over it, and under these facts the State is not liable.
While the provisions of the new Highway Law prescribed a maximum weight of eight- tons, this provision had only been in force since February 17, 1909, or 114 days before the accident which occurred May 81, 1909. The time that had elapsed between the date the Highway Law became effective and the date of the accident is not sufficient to charge the State with negligence in not reconstructing the bridge to meet the requirements of the increased load.
At the time that the bridge was constructed and repaired it was only required to carry a load of four tons, and any person undertaking to draw a larger load than four tons over the bridge while the old Highway Law was in force did so at his own risk. The intestate and the highway commissioner are presumed to have known of the provision of the Town Law prescribing the maximum weight that town bridges were required to sustain, and they must have known of the weight of the engine which they undertook to drive over this bridge. Both of them examined the bridge and had as good knowledge of its condition as the State. The highway commissioner who accompanied the intestate had inspected the bridge, was familiar with its condition and was an expert on the strength of bridges. In assuming to pass over it with the knowledge that he had as to the weight of the load and the condition of the bridge, the claimant [623]*623assumed the risk; and the claim should he dismissed whether we view it from the standpoint of the alleged negligence, on the part of the State (Kelly v. Town of Saugerties, 110 App. Div. 561), or from the standpoint of contributory negligence on the part of the intestate. Johnson v. Town of Denning, 106 id. 343; Spencer v. Town of Sardinia, 42 id. 472.