Ross, J.
I. Action properly brought.— It appears from the justice’s minutes that the supervisor appeared for the town upon the adjourned day. Such appearance was unnecessary as the plaintiff appeared by his counsel, J. B. Shea, both at the time of joining issue and also upon the adjourned day. The counsel upon each occasion swore to his authority.
Section 15 of the Highway Law provides that: “ The commissioners of highways may bring an action in the name of the town, against any person * * * to enforce the performance of any duty enjoined upon any person * * * and to recover any damages sustained * * * by such town, in consequence of any act or omission of any such person * * * in violation of any law or contract in relation to such highway.” People ex rel. Cocheu v. Dettmer, 26 App. Div. 328.
Eugene Delong, the commissioner of highways of the town of Clay, was sworn as a witness upon the trial of this action. He had previously brought an action in his own name as commissioner of highways before the same justice and against the same defendant in which he alleged substantially the same facts as alleged in the complaint in this action. In the first action he was unsuccessful. This action being properly brought in the name of the town an appellate court will not presume in view of the foregoing facts that the commissioner of highways of the town of Clay did not bring this action; especially in view of the fact that the bringing of such a suit, if a cause of action exist, pertained to the duties of his office.
II. Former action not a bar.—■ The judgment in the action of [113]*113Eugene Delong, as commissioner of highways of the town of Olay, against the defendant is not a bar to this action. A judgment for want of proper parties is not a judgment on the merits. Freeman on Judgments, §§ 263 and 266. The section last quoted is as follows: “ The third subdivision (where the proper parties are not before the court) is applicable to cases in which the want of proper parties, either plaintiff or defendant, is apparent from an inspection of the record; and also to cases where, though the proper parties apparently come before the court, one or more of them has no-capacity to sue.”
Neither is a misconceived action a bar. The mistaking of his action by a plaintiff is not a bar nor estoppel to bring his true action. Freeman on Judgments, § 265; Robinson’s case, vol. 3; Coke’s Reports, 33 A. Mr. Freeman, in section 265, uses the following language: “ The exception which takes these cases (where the action is misconceived) out of the general rules in relation to estoppel is a very important one, saving the plaintiff from the loss of his claim, through any error or judgment on the part of his attorney in determining what form of action is best suited for the enforcement of the plaintiff’s rights.”
But further the parties are not the same. “ It is just as important that the parties to both suits should be acting in the same capacity in each, as that the parties should be the same.” 21 Am. & Eng. Ency. Law, 136; Duchess of Kingston’s case (1776), 3 Smith’s Leading Cases, 1998; Metters v. Brown, 1 Hurl. & C. 686; Leggott v. Great N. R. Co., 1 L. R., Q. B., 599; Eshelman v. Shuman, 13 Penn. St. 561; Alexander v. Taylor, 4 Den. 302; Freeman on Judgments, § 156. In the case of Alexander v. Taylor, it was held that “ Where the defendant in an action of trover, had recovered judgment in replevin for the same property, against J. W. S., who was in the employment of the plaintiff in the first-mentioned suit, and who set up in his defense that the property belonged to his employer, and that he took it as his servant and agent; that the record of the former recovery was not admissible in the action of trover.”
In the case of Eshelman v. Shuman it was held that a suit by the president of the Orphans’ Court, for the use of the assignee of the husband for an amount of the share of the wife, is no bar to recovery in the name of the same officer for the use of the wife and her husband, as her trustee.
[114]*114For the foregoing reasons no question of privity of estate (which was argued by the attorney for the appellant) can arise. H the party would not be bound those in privity of estate with him are not bound; but there is no privity of estate between Eugene Delong, as commissioner of highways of the town of Olay, and the town of Clay. The first action brought by Eugene Delong being unauthorized there was no estate to devolve.
III. Eights and obligations of the defendant in respect to the highway.—■ The plaintiff being properly in court, and it being held that the former action referred to is not a bar to this, the principal question is, has the defendant omitted any duty, or violated any contractural obligation, actual or implied, which he owes to the plaintiff? It does not appear from the evidence whether the watercourse across the highway is now necessary, but from the fact that a bridge is necessary, and the water-course still remains, it must be assumed that the water-course across the highway still continues for the benefit of the owner.
The town cannot recover as upon a covenant running with the land,, for there is no covenant; and if a recovery can he had upon a right by prescription, which is doubtful, it would not he a personal obligation of a subsequent grantee; but such a servitude could only he enforced against the land. Whittenton Manf. Co. v. Staples, 164 Mass. 319.
The public acquired an easement in the highway which the owner of the land could not interrupt; and the title to the soil remained in the owner, and he has the right to every use to which the land can be applied subject to the easement of the public. He had the right to sink a water-course under the highway upon his own land for the use of his mill; but he must take care that the highway remains sáfe for travelers thereon. Perley v. Chandler, 6 Mass. 453; Woodring v. Forks Township, 28 Penn. St. 355; Hecock v. Sherman, 14 Wend. 59; Dygert v. Schenck, 23 Wend. 446; Washburn on Easements, star page 197; Briggs v. N. Y. C. & H. R. R. R. Co., 30 Hun, 295; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 457.
IV. Nuisance.— The recovery in this case can, as it seems to me, be upheld upon the ground that it was a nuisance for the defendant to maintain a stream across the highway without protecting the public, and that the obligation to protect the public rests primarily upon the defendant and secondarily upon the town, and that the latter in consequence of such liability has a right to abate the nui[115]*115sanee, that is to repair the bridge and charge the same to the owner of the premises.
Any act of an individual done to a highway although performed upon his own soil, if it detracts from the safety of travelers is a nuisance. Dygert v. Schenck, 23 Wend. 447, and cases there cited. A continuous act or omission which renders a public highway unsafe is probably a nuisance, per se. 16 Am. & Eng. Ency. Law, 937.
V. Eight to abate a nuisance.— While it is true that the right to abate a public nuisance only lies with those who sustain a special injury, and in the case of a municipal corporation it can do nothing beyond the powers granted by the legislature. It is, however, made the duty of the commissioners of highways of towns to cause the highways and bridges therein to be kept in repair. Highway Law, § 4. And also is the duty of the overseer of highways to repair and keep in order the highways within his district. Highway Laws, § 26, subd. 1.
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Ross, J.
I. Action properly brought.— It appears from the justice’s minutes that the supervisor appeared for the town upon the adjourned day. Such appearance was unnecessary as the plaintiff appeared by his counsel, J. B. Shea, both at the time of joining issue and also upon the adjourned day. The counsel upon each occasion swore to his authority.
Section 15 of the Highway Law provides that: “ The commissioners of highways may bring an action in the name of the town, against any person * * * to enforce the performance of any duty enjoined upon any person * * * and to recover any damages sustained * * * by such town, in consequence of any act or omission of any such person * * * in violation of any law or contract in relation to such highway.” People ex rel. Cocheu v. Dettmer, 26 App. Div. 328.
Eugene Delong, the commissioner of highways of the town of Clay, was sworn as a witness upon the trial of this action. He had previously brought an action in his own name as commissioner of highways before the same justice and against the same defendant in which he alleged substantially the same facts as alleged in the complaint in this action. In the first action he was unsuccessful. This action being properly brought in the name of the town an appellate court will not presume in view of the foregoing facts that the commissioner of highways of the town of Clay did not bring this action; especially in view of the fact that the bringing of such a suit, if a cause of action exist, pertained to the duties of his office.
II. Former action not a bar.—■ The judgment in the action of [113]*113Eugene Delong, as commissioner of highways of the town of Olay, against the defendant is not a bar to this action. A judgment for want of proper parties is not a judgment on the merits. Freeman on Judgments, §§ 263 and 266. The section last quoted is as follows: “ The third subdivision (where the proper parties are not before the court) is applicable to cases in which the want of proper parties, either plaintiff or defendant, is apparent from an inspection of the record; and also to cases where, though the proper parties apparently come before the court, one or more of them has no-capacity to sue.”
Neither is a misconceived action a bar. The mistaking of his action by a plaintiff is not a bar nor estoppel to bring his true action. Freeman on Judgments, § 265; Robinson’s case, vol. 3; Coke’s Reports, 33 A. Mr. Freeman, in section 265, uses the following language: “ The exception which takes these cases (where the action is misconceived) out of the general rules in relation to estoppel is a very important one, saving the plaintiff from the loss of his claim, through any error or judgment on the part of his attorney in determining what form of action is best suited for the enforcement of the plaintiff’s rights.”
But further the parties are not the same. “ It is just as important that the parties to both suits should be acting in the same capacity in each, as that the parties should be the same.” 21 Am. & Eng. Ency. Law, 136; Duchess of Kingston’s case (1776), 3 Smith’s Leading Cases, 1998; Metters v. Brown, 1 Hurl. & C. 686; Leggott v. Great N. R. Co., 1 L. R., Q. B., 599; Eshelman v. Shuman, 13 Penn. St. 561; Alexander v. Taylor, 4 Den. 302; Freeman on Judgments, § 156. In the case of Alexander v. Taylor, it was held that “ Where the defendant in an action of trover, had recovered judgment in replevin for the same property, against J. W. S., who was in the employment of the plaintiff in the first-mentioned suit, and who set up in his defense that the property belonged to his employer, and that he took it as his servant and agent; that the record of the former recovery was not admissible in the action of trover.”
In the case of Eshelman v. Shuman it was held that a suit by the president of the Orphans’ Court, for the use of the assignee of the husband for an amount of the share of the wife, is no bar to recovery in the name of the same officer for the use of the wife and her husband, as her trustee.
[114]*114For the foregoing reasons no question of privity of estate (which was argued by the attorney for the appellant) can arise. H the party would not be bound those in privity of estate with him are not bound; but there is no privity of estate between Eugene Delong, as commissioner of highways of the town of Olay, and the town of Clay. The first action brought by Eugene Delong being unauthorized there was no estate to devolve.
III. Eights and obligations of the defendant in respect to the highway.—■ The plaintiff being properly in court, and it being held that the former action referred to is not a bar to this, the principal question is, has the defendant omitted any duty, or violated any contractural obligation, actual or implied, which he owes to the plaintiff? It does not appear from the evidence whether the watercourse across the highway is now necessary, but from the fact that a bridge is necessary, and the water-course still remains, it must be assumed that the water-course across the highway still continues for the benefit of the owner.
The town cannot recover as upon a covenant running with the land,, for there is no covenant; and if a recovery can he had upon a right by prescription, which is doubtful, it would not he a personal obligation of a subsequent grantee; but such a servitude could only he enforced against the land. Whittenton Manf. Co. v. Staples, 164 Mass. 319.
The public acquired an easement in the highway which the owner of the land could not interrupt; and the title to the soil remained in the owner, and he has the right to every use to which the land can be applied subject to the easement of the public. He had the right to sink a water-course under the highway upon his own land for the use of his mill; but he must take care that the highway remains sáfe for travelers thereon. Perley v. Chandler, 6 Mass. 453; Woodring v. Forks Township, 28 Penn. St. 355; Hecock v. Sherman, 14 Wend. 59; Dygert v. Schenck, 23 Wend. 446; Washburn on Easements, star page 197; Briggs v. N. Y. C. & H. R. R. R. Co., 30 Hun, 295; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 457.
IV. Nuisance.— The recovery in this case can, as it seems to me, be upheld upon the ground that it was a nuisance for the defendant to maintain a stream across the highway without protecting the public, and that the obligation to protect the public rests primarily upon the defendant and secondarily upon the town, and that the latter in consequence of such liability has a right to abate the nui[115]*115sanee, that is to repair the bridge and charge the same to the owner of the premises.
Any act of an individual done to a highway although performed upon his own soil, if it detracts from the safety of travelers is a nuisance. Dygert v. Schenck, 23 Wend. 447, and cases there cited. A continuous act or omission which renders a public highway unsafe is probably a nuisance, per se. 16 Am. & Eng. Ency. Law, 937.
V. Eight to abate a nuisance.— While it is true that the right to abate a public nuisance only lies with those who sustain a special injury, and in the case of a municipal corporation it can do nothing beyond the powers granted by the legislature. It is, however, made the duty of the commissioners of highways of towns to cause the highways and bridges therein to be kept in repair. Highway Law, § 4. And also is the duty of the overseer of highways to repair and keep in order the highways within his district. Highway Laws, § 26, subd. 1. And the town is made liable for defective highways. Highway Law, § 16. So that it became the duty of the commissioner of highways of the town of Olay, and also of the overseer of highways to abate the nuisance of an unsafe bridge by putting the same in a proper state of repair.
The fact that other remedies may exist does not preclude the public from bringing an action against the party liable to make the repairs. Woodring v. Forks Township, 28 Penn. St. 355. Where, in a given state of facts, the law raises a legal obligation to. do a particular act, and there is a breach of that duty and a consequent damage assumpsit may be maintained upon a promise liable by law to do the act. 1 Chit. Pl. 155.
VI. Primary duty to repair.— I think that the primary liability to repair rested upon the defendant, the owner and occupier of the premises through which the water-course ran, and who received the benefits therefrom. As stated in the case of King v. Inhabitants, etc., 14 East, 317, by Grose, J.: “ The defendants cannot be liable to repair a bridge erected and continued for the private benefit of the company; for mthout the cut made by the company for their own benefit, there would be no necessity for the bridge.”
It was stated by Mr. Justice Ruger in the case of City of Rochester v. Campbell, 123 N. Y. 411, “ as being too well settled to require argument. * * * H a municipal corporation has been compelled to pay a demand for damages recovered by a traveler for injuries sustained from a defect or obstruction in one of its high[116]*116ways, which defect or obstruction was created by the willful act or negligence of a third person, it may maintain an action against such third person for reimbursement, and the rule is the same when it has paid an undoubted liability without suit. * * * So, also, if the municipality has provided by contract with third persons for keeping its street in repair, and has been, through a neglect by snch party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has thus been compelled to pay.”
In this state, in this class of actions, the term “ primary liability ” has, as it seems to me, been frequently used carelessly. In the case of City of Rochester v. Montgomery, 72 N. Y. 67, Rapallo, J., uses the following language:
If the defendant unlawfully placed an obstruction in the street, or left it negligently without guards or lights, and McNeiss was injured in consequence, the plaintiff, although primarily liable to McNeiss, had recourse over against the defendant for the amount recovered by McNeiss, by reason of the defendant’s unlawful or negligent act.” This can only mean that McNeiss, the party injured, could first sue the city. For if the primary liability rested upon the city how could it maintain an action against one only secondarily liable?
In the case of City of Cohoes v. Morrison, 42 Hun, 216, affirmed in the Court of Appeals without opinion, 116 N. Y. 662, the court said, page 218, Landon, J.: “ Sewell (the party who had recovered against the city) only sought recovery from the city, and it was not needful for him to establish that the defendant was the primary author of the act which injured him.”
In the Campbell case, page 413, Mr. Justice Huger uses the following language: “ In these cases (actions by municipal corporations against wrongdoers for damages which they have been compelled to pay individuals injured through defects or obstructions in highways) the primary liability rested upon those who created the dangerous condition through which injury resulted and the municipality having been forced to pay such damages to one injured, it became subrogated to the remedies of the party whose damages had been satisfied.”
It would seem clear, from the language of the court in the Morrison and Campbell cases, and upon principle, that the primary duty rests in this class of cases upon the individual who, either by a violation of a statutory or contractural duty by acts or omissions, [117]*117has caused the injury to the third person. In other words, the words “ primary liability ” mean not the person whom the third party can first sue; but the party ultimately liable, the party who must finally respond in damages for his wrongful or unlawful act.
For the foregoing reasons it seems to me that the acts of the defendant in continuing the water-course across the public highway without adequately protecting the public created a nuisance and that the statutory provisions in relation to the duties of the commissioner and overseer of highways of towns gave those officials the right and made it their duty in the performance of the affirmative obligation to the public to repair and abate such nuisance, and that the duty to maintain this water-course in such a manner that it should not become a nuisance rested primarily upon the defendant.
The evidence upon the subject of the value of the repairs is rather meagre. Eugene Delong, upon the subject, testified: “I made repairs upon the bridge after I served a notice on defendant. I had the old plank taken off and a new plank put on it. The bill for doing it amounted to $31.76. I presented the bill to Hart and asked him to pay it. Defendant said he wanted a few days to look it up.”
As the defendant did not object to the amount of the bill when presented to him; did not object to the foregoing evidence upon the subject of the value of the repairs upon the trial, and did not claim upon the motion made for a nonsuit that the value of the repairs was not properly proven, did not raise objection upon this appeal the evidence will be deemed sufficient.
Judgment affirmed, with costs.