By the Court, S. B. Strong, J.
The statute provides that it shall be the duty of the commissioners of highways to give directions for the' repairing of the roads and bridges within their respective towns, and to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair. (1 R. S. 502.) The duties are imposed in separate subdivisions (1 and 4) of the first section, and it would seem from that and their relative position, that the latter is variant from, or additional to, the former. The complaint does not allege that the defendants had omitted to give directions for the reparation of the defective bridge upon which the plaintiff’s horse was injured. They are charged in the second count, with having negligently permitted “a certain bridge in said town in a public highway” to be and remain in an unsafe, defective and dangerous condition; which is equivalent to an averment that they had failed to cause it [628] to be kept in repair. , It is averred in the first count that it was, .their duty-to. cause the bridges which were' in the town, over streams intersecting highways, to- be kept in repair, and that a certain bridge on. a highway in said town (being the bridge in question) was so defective as to be unsafe and unfit to be crossed; and that the defects were known to the defendants. When a complaint is made against a public officer, of a neglect to perform a duty imposed upon him-by statute,, the neglect should be clearly and distinctly stated. There is an" omission in the description of the bridge, in this case, which is material and would, without an amendment, preclude a recovery. It is not stated that it is over a stream intersecting a highway. It is said to be on a highway, but it may have been over a pond, or. a ravine. As to all bridges except those which are over streams, the duty of the commissioners was simply to give directions for their reparation; and the defendants are not accused of a neglect of that duty.
But, independently of the omission to which I have alluded, and which might, no doubt, be cured by an amendment, there is a more serious, and in my opinion an insurmountable, obstacle to the plaintiff’s, recovery. The defendants’ obligation to repair any bridge was qualified, not absolute. It was truly remarked by Chief Justice Nelson, in the case of The People v. The Commissioners of Highways of Hudson, (7 Wend. 477,) that “the statute which makes it their duty to.keep, the highways' and bridges in repair did not intend to extend that duty beyond their means.” And the learned justice who decided this case at special term, cited with approbation the case of The People v. Adsit, (2 Hill, 619,) where it was decided that the existence of the funds or other specific means was a condition precedent to the obligation of commissioners of highways to repair bridges; and the case of Barker v. Loomis, (6 Hill, 463,) where it was held that commissioners of highways were not bound to build or repair bridges until the necessary funds were provided for that purpose. By their means 1 understand the funds in their possession—not those [629] which they might obtain at a future period. They cannot, and should not, be required to advance their individual moneys for public purposes. Their duties which the law compels them to perform are onerous enough without that. If our public officers would only faithfully apply what they actually receive, the people would have no cause to complain. Although that is a consummation devoutly to he wished, it is not always attainable. The pleader in this case seems to have been aware that the defendants could not be required to go beyond their official means, - and he therefore avers, in his first count, that they had, or were entitled to, or could have had, but for their negligence, sufficient resources to keep all the roads and bridges in their town in repair. These are said to be “the highway labor of said town;” “the amount of moneys to which the commissioners were entitled for penalties, forfeitures, commutations and fines;” and the sum of $250 “which they were authorized to -have assessed, levied and collected on said town for the necessary improvement of the roads and bridges in the said town for the year” in which the accident complained of happened. The commissioners had no power to apply the highway labor of the town, but only of the district in which the highway- was located.- It is provided in the 32d section of the act in relation to highways, (1 R. S. 508,) that no person, being a resident of the town, shall be required to work on any highway other than in the district where he resides; unless he shall elect to work in some district where he has any land. There may have been assessed in the same district highway labor sufficient, with the other means indicated, to have kept all the highways and bridges in repair, and yet there might have been a deficiency in the district where the bridge was to be repaired. The commissioners could only call into requisition .the labor of that district, which might have been wholly inadequate.' Then as to the “penalties, forfeitures, commutations and fines," it is not averred that they had been actually received, or were collectable. From the allegation that the defendants were [630] “entitled” to them, it is inferable that they had not been, collected. If they had been simply incurred or imposed, they were a most unreliable resource, and certainly not sufficient to impose a positive and onerous duty. The remaining specified fund was the $250 which the commissioners were authorized to have assessed for the necessary improvement of the roads and bridges in their town. It is evident that no assessment had been made, as the defendants are charged with neglect in not having delivered to the supervisor of the town a statement of the improvement necessary to be made, which was a requisite preliminary to the imposition of the tax. The allegations in the complaint show, however, that there was not only no neglect in this particular, but that it was absolutely impossible for the defendants to obtain the money, from their election up to the time of the accident. It is- averred that they were commissioners from the 1st of May to the 1st of September, 1854, and that the accident occurred on the 30th of August, in that year. Now there could not be any assessment for bridges until the supervisors had their anpual meeting, which was on the first Tuesday next after the general election in November of that year. (1 R. S. 366, § 3, sub. 3.) Until then there could not have been any efficient action in imposing the tax, and of course there was no negligence in not delivering the preliminary statement to the supervisor of the town by the 30th of August, when the accident happened. It would therefore seem, not only that the defendants had not the requisite funds in their possession, but that they were not in fault for not having obtained them.
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By the Court, S. B. Strong, J.
The statute provides that it shall be the duty of the commissioners of highways to give directions for the' repairing of the roads and bridges within their respective towns, and to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair. (1 R. S. 502.) The duties are imposed in separate subdivisions (1 and 4) of the first section, and it would seem from that and their relative position, that the latter is variant from, or additional to, the former. The complaint does not allege that the defendants had omitted to give directions for the reparation of the defective bridge upon which the plaintiff’s horse was injured. They are charged in the second count, with having negligently permitted “a certain bridge in said town in a public highway” to be and remain in an unsafe, defective and dangerous condition; which is equivalent to an averment that they had failed to cause it [628] to be kept in repair. , It is averred in the first count that it was, .their duty-to. cause the bridges which were' in the town, over streams intersecting highways, to- be kept in repair, and that a certain bridge on. a highway in said town (being the bridge in question) was so defective as to be unsafe and unfit to be crossed; and that the defects were known to the defendants. When a complaint is made against a public officer, of a neglect to perform a duty imposed upon him-by statute,, the neglect should be clearly and distinctly stated. There is an" omission in the description of the bridge, in this case, which is material and would, without an amendment, preclude a recovery. It is not stated that it is over a stream intersecting a highway. It is said to be on a highway, but it may have been over a pond, or. a ravine. As to all bridges except those which are over streams, the duty of the commissioners was simply to give directions for their reparation; and the defendants are not accused of a neglect of that duty.
But, independently of the omission to which I have alluded, and which might, no doubt, be cured by an amendment, there is a more serious, and in my opinion an insurmountable, obstacle to the plaintiff’s, recovery. The defendants’ obligation to repair any bridge was qualified, not absolute. It was truly remarked by Chief Justice Nelson, in the case of The People v. The Commissioners of Highways of Hudson, (7 Wend. 477,) that “the statute which makes it their duty to.keep, the highways' and bridges in repair did not intend to extend that duty beyond their means.” And the learned justice who decided this case at special term, cited with approbation the case of The People v. Adsit, (2 Hill, 619,) where it was decided that the existence of the funds or other specific means was a condition precedent to the obligation of commissioners of highways to repair bridges; and the case of Barker v. Loomis, (6 Hill, 463,) where it was held that commissioners of highways were not bound to build or repair bridges until the necessary funds were provided for that purpose. By their means 1 understand the funds in their possession—not those [629] which they might obtain at a future period. They cannot, and should not, be required to advance their individual moneys for public purposes. Their duties which the law compels them to perform are onerous enough without that. If our public officers would only faithfully apply what they actually receive, the people would have no cause to complain. Although that is a consummation devoutly to he wished, it is not always attainable. The pleader in this case seems to have been aware that the defendants could not be required to go beyond their official means, - and he therefore avers, in his first count, that they had, or were entitled to, or could have had, but for their negligence, sufficient resources to keep all the roads and bridges in their town in repair. These are said to be “the highway labor of said town;” “the amount of moneys to which the commissioners were entitled for penalties, forfeitures, commutations and fines;” and the sum of $250 “which they were authorized to -have assessed, levied and collected on said town for the necessary improvement of the roads and bridges in the said town for the year” in which the accident complained of happened. The commissioners had no power to apply the highway labor of the town, but only of the district in which the highway- was located.- It is provided in the 32d section of the act in relation to highways, (1 R. S. 508,) that no person, being a resident of the town, shall be required to work on any highway other than in the district where he resides; unless he shall elect to work in some district where he has any land. There may have been assessed in the same district highway labor sufficient, with the other means indicated, to have kept all the highways and bridges in repair, and yet there might have been a deficiency in the district where the bridge was to be repaired. The commissioners could only call into requisition .the labor of that district, which might have been wholly inadequate.' Then as to the “penalties, forfeitures, commutations and fines," it is not averred that they had been actually received, or were collectable. From the allegation that the defendants were [630] “entitled” to them, it is inferable that they had not been, collected. If they had been simply incurred or imposed, they were a most unreliable resource, and certainly not sufficient to impose a positive and onerous duty. The remaining specified fund was the $250 which the commissioners were authorized to have assessed for the necessary improvement of the roads and bridges in their town. It is evident that no assessment had been made, as the defendants are charged with neglect in not having delivered to the supervisor of the town a statement of the improvement necessary to be made, which was a requisite preliminary to the imposition of the tax. The allegations in the complaint show, however, that there was not only no neglect in this particular, but that it was absolutely impossible for the defendants to obtain the money, from their election up to the time of the accident. It is- averred that they were commissioners from the 1st of May to the 1st of September, 1854, and that the accident occurred on the 30th of August, in that year. Now there could not be any assessment for bridges until the supervisors had their anpual meeting, which was on the first Tuesday next after the general election in November of that year. (1 R. S. 366, § 3, sub. 3.) Until then there could not have been any efficient action in imposing the tax, and of course there was no negligence in not delivering the preliminary statement to the supervisor of the town by the 30th of August, when the accident happened. It would therefore seem, not only that the defendants had not the requisite funds in their possession, but that they were not in fault for not having obtained them.
In the case of Hutson and wife v. The Mayor &c. of New York, (5 Sandf 289, affirmed by Court of Appeals, 5 Seld. 163,) the plaintiff recovered for the breach of an absolute and unconditional duty of the defendants to repair their streets; hut the learned judge who gave the opinion of the court refers, certainly without disapprobation, to cases in which it had been held that public officers were not liable for omissions to keep highways in repair “where the powers have been so lim[631] ited, to accomplish the object, that the court 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.”
It is clear that there is no sufficient allegation, in the first count, that the defendants had the requisite funds to repair the bridge; nor is there in the second count any averment that they had any funds whatever.
The only remaining question is, whether an averment of the possession of the requisite funds was necessary. I have already alluded to the rule that where a party seeks to recover damages of one for a breach of official duty, he must state enough to show a violation of such duty. That rule is applied by Chancellor Kent in the case of Bartlett v. Crozier, before the court for the correction of errors, (17 John. 457,) in clear and forcible terms. That was an action against an overseer, of highways, for damages caused by his not repairing a bridge. The declaration did not allege that the defendant had the necessary funds. The chancellor said the obligation of the defendant, if any, “arose from the means which he had in his power and from which alone the law deduced his duty. But the declaration does not state the means, and therefore it lays no foundation for the duty. ^ This objection strikes me as fatal. Nor will it be sufficient to say that the facts creating his duty must have been shown on' the trial, and that we are now, after verdict, to presume so. The court are never to presume a cause of action,- even after verdict, when none appears.” It is a good rule that whatever is essential to sustain the action should be averred in the complaint. The reasons are too palpable to require any specification. Now it would not be enough for the plaintiff, in order to sustain his action in this case, to prove that the defendants were the commissioners of highways of their town; that the bridge was out of repair, and known to them to be so; that they had not repaired it, and that the plaintiff’s horse had fallen through it,- and been thereby greatly injured. He must have [632] gone further, and shown that they had the requisite public fundsand if he had failed to do so he would have failed in his suit.
[Orange General Term,
July 1, 1857.
S. B. Strong, Birdseye and Emott, Justices.]
I am satisfied that the learned judge who decided this case, at the special term, erred, and that his judgment should be reversed with costs, and a judgment rendered for the defendant, upon the demurrer. The plaintiff should be at liberty to amend his complaint within twenty days, upon the payment of the costs of the demurrer and the appeal.