In the Matter of the Application of Rosalia Whitmore, Resp’t, v. The Village of Tarrytown, App’lt.(Supreme Court, General Term, Second Department,Filed December 14, 1891.)Headnote
Villages—Liability fob trespass.To render a village liable for a trespass it is not necessary that there should have been a resolution of the board of trustees directing the acts complained of. It is sufficient that the acts were openly done by an officer of the village, using its teams and employees.
Appeal from order appointing commissioners herein to assess damages for the alleged change of grade of a public street in the village of Tarrytown, and from the judgment entered upon the confirmation of the report of said commissioners, awarding $1,000 damages against said village, and from the order of Justice Dylcman confirming said report and from the report of said commissioners.
Prom plaintiff’s fence to the original roadbed of the street there was sloping bank which was twelve feet high at the fence line. In widening the roadbed the commissioner and his workmen cut away this bank and undermined the fence so that in some places it fell.
Defendant disclaimed liabitity on the ground that no resolution had been passed authorizing such disturbance of the bank or street.
George C. Andrews, for app’lt.; Wilson Brown, Jr., for resp’t.
The appellant urges that as no resolution of the village board of trustees is shown directing the acts complained of, the village officers must be held to have acted in their individual capacity and be liable as for an individual trespass, and that the village cannot be held liable.
We find no authority that requires such strictness, and we are not able to see that it is necessary for the protection of villages.
In the case at bar the change in the road was made by the village road commissioners, and the village teams and employees under his control.
The acts were done in the most open manner, and continued through years. The knowledge of the trustees might well be presumed.
The court at special term and the commissioner found as a fact that the village authorized the work, and the finding- was clearly correct.
The estimate of damage is extremely moderate, and the judgment should be affirmed, with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.