FIFTH DEPARTMENT, OCTOBER TERM, 1887. upon the official instrumentalities provided for by the statute is a question worthy of some consideration. The cases to which our attention has been called related to defective bridges, which, as has been seen, are distinguished from other portions of highways. Ordinarily, it would seem that when advised of a defective condition of a highway, the reparation of which is within the means at the command of the overseer, and having given to the latter direction to repair it, the commissioner may, for the time being, rely upon the performance by him of such duty, because it is through such direction and its execution that the work is to be done; and it cannot be supposed that the commissioner will constantly be in attendance during its progress. (Smith v. Wright, 27 Barb., 621.) Yet, in view of the superintending care imposed upon him, he should be required to use reasonable diligence to learn whether the overseer has proceeded with the performance of the work, and if he has not, to take measures, so far as he may, to enforce the execution of such direction. The wash-out which produced the defect in question occurred on August twenty-third, and the commissioner was advised of it shortly after, and requested a person to see the overseer and have him fix the road; and there is evidence tending to prove that such person the same day saw the overseer and told him what the commissioner had said. The plaintiff received his injury September fifth, and the road remained unrepaired until September seventh. The repair did not require a great amount of work. The jury were permitted to conclude that the road ought to have been repaired prior to the time of the plaintiff's injury, and that by the exercise of reasonable diligence it may have been. The evidence to the effect that direction from the commissioner to fix the road was communicated to the overseer is contradicted by the latter, who says he first learned of its defective condition when he saw it on September third. And it does not appear that the commissioner took any means to ascertain whether his communication reached the overseer, or whether or not any steps had been taken to repair the road prior to the time of the accident. The evidence, we think, was sufficient to send the case to the jury upon the question of the negligence of the commissioner of highways. And it is not important whether that did or did not depend upon evidence given after the plaintiff rested and the FIFTH DEPARTMENT, OCTOBER TERM, 1887 motion for nonsuit was denied, as in either event the exception will be deemed ineffectual. (Painton v. N. C. R'y Co., 83 N. Y., 7.) The court was requested and declined to charge the jury that if they found that the commissioner sent directions by the person named to the overseer to repair the road, and that they were communicated to him, the commissioner's duty was discharged. And exception was taken by the defendant. The court then charged that it did not wish to be understood that it was the duty of the commissioner to look further, but it was a question for the jury to determine whether or not he had discharged his whole duty under the circumstances. And upon the further request of the defendant's counsel the court also charged that if such directions were communicated to the overseer it was his duty to make the repair, and that his neglect to do it not coming to the knowledge of the commissioner does not impute negligence to the latter. The charge, as made in that respect, was as favorable to the defendant as it was entitled to, and there was no error in the refusal to charge as requested. While the duty of the commissioner was to direct the overseer to make the repair, it cannot be said as matter of law that his duty ended there. Ten days after he communicated to a third person his directions for the overseer, the injury complained of was suffered, and in the meantime nothing was done by way of repairing the road. The care of the highways imposed upon and assumed by the commissioner may require of him something more than mere direction to his subordinate officers. Although he may have the right to assume that they will obey his mandate, it is consistent only with his duty that he ascertain within a reasonable time whether they have been executed. He is charged with the care and superintendence of the highways as well as with the duty of directing their reparation. The former may not be wholly discharged by the performance of the latter. The responsibility is with him so far as it comes within the exercise of reasonable care. The overseers are subject to the directions of the commissioners in the line of their duty and to his actions for penalties for refusal or neglect to execute them. This is designed, so far as it may, to enable the commissioner to require the performance by them of their duty, and to render his care and superintendence effectual for the proper maintenance of the highways in suitable condition for the public use. The defend FIFTH DEPARTMENT, OCTOBER TERM, 1887. ant's counsel excepted, so far as related to roadways, to the charge "that the statute required the commissioner to use active oversight and vigilance in ascertaining the condition of the highways and knowing their condition, and if out of repair to cause them to be put in repair." This charge was not error. It did not involve the question of degree of activity and vigilance or to what extent they may be qualified by dependence upon the subordinate officers. The duties of the commissioners are those of reasonable diligence and vigilance in their performance by way of care and superintendence relating to the roadway, as well as to bridges over streams intersecting highways, with the distinction before observed in respect to the manner of their exercise which goes to the degree of personal vigilance. (Bostwick v. Barlow, 14 Hun, 177; Babcock v. Gifford, 29 id., 186; Hovery. Barkhoof, 44 N. Y., 113.) The evidence of conversations had by witnesses with the commissioner to which exceptions were taken, was competent to show his knowledge of the defective condition of the highway and was received solely for that purpose. But it is said that it had not appeared that the person was commissioner of highways of the town, and for that reason it did not appear that any duty rested upon him as such. It is true that there was no evidence given on the trial tending to prove that he was such officer, other than that he had acted as such from February to November, 1885, and that in March he issued to the overseer of the district in which the injury occurred, his warrant as commissioner containing the assesment of inhabitants for work to be performed on the roads in that district, and the usual direction. This may have been insufficient to establish that he was a commissioner de jure, as there was no evidence that he was reputed to be such officer or that he had colorable right to the office. If he was merely an officer de facto he had no duty to perform and could not be chargeable for mere failure to act or omission to act. (Olmsted v. Dennis, 77 N. Y., 378.) This question may have been urged here with some force if the objection had been specifically taken at the trial. This was not done. While the objection taken may have embraced this within it, the attention of the court and of counsel was not called to this point by the ground of the objection to the evidence. If it had been, it may be that it would have been obviated FIFTH DEPARTMENT, OCTOBER TERM, 1887. by further evidence. And no such question appears by the record to have been raised by the motion for nonsuit or otherwise at the trial. We have examined all the exceptions and none of them seem well taken. The question of negligence of the plaintiff was one of fact. The verdict was supported by the evidence. The judgment and order should be affirmed. SMITH, P. J., and CHILDS, J., concurred. HARRISON CHAMBERLAIN, PLAINTIFF, v. ADELBERT E. DARROW, AS SHERIFF, ETC., DEFENDANT. Action for the conversion of personal property—when the possession by a husband, of property of his deceased wife, will not sustain a recovery by him as against a wrong-doer words “being a householder or having a family for which he provides,” as used in sections 1390 and 1391, of the Code of Civil Procedure, construed. This action was brought for the alleged conversion of certain personal property, consisting of a horse, cow and heifer, and some farming utensils and growing crops, by the defendant, a sheriff, who alleged, by way of justification, a levy upon and sale of the property in July, 1886, under an execution issued upon a judgment recovered against the plaintiff. Evidence given upon the trial tended to prove that the cow and heifer in question belonged to the wife of the plaintiff up to the time of her death, in December, 1885, and continued in his custody or possession down to the time of the levy and sale, and that notice of these facts was given to the defendant by the plaintiff prior to the sale. Held, that as the contest was by the plaintiff individually, and not as the personal representative of his wife, he was not entitled to a judgment against the defendant, as a wrong-doer, upon the ground that he, the plaintiff, was, at the time of the action, possessed of the property. The death of his wife left the plaintiff without a family, and he so remained until after the sale in question. The wife of an adult son of the plaintiff, who resided a few miles distant, occasionally, and as the evidence tended to prove, weekly came to the plaintiff's house, did washing, baking and such things as were required to put the house in order, her children coming with her and usually remaining there over night, and sometimes two nights, but still residing at the house of the husband, who provided for her. Held, that the plaintiff was not a householder, nor did he provide for a family, within the meaning of sections 1390, 1391 of the Code of Civil Procedure. FIFTH DEPARTMENT, OCTOBER TERM, 1887. MOTION by the plaintiff for a new trial on exceptions taken at the Cattaraugus Circuit and ordered to be heard at General Term in the first instance. The action was brought for the alleged conversion of personal property consisting of a horse, cow and heifer, some farming utensils, growing crops, etc. The defendant alleged, by way of justification, the levy and sale of the property by virtue of an execution issued upon a judgment in favor of one Murphy against the plaintiff. Amongst the property so levied upon was some standing grass on the plaintiff's premises which was also sold after it was cut. The court directed judgment for the plaintiff for the value of the grass, and held that the plaintiff was not entitled to recover for the taking and sale of any of the other property. To such ruling and to the refusal of the court to submit to the jury the question in respect to his right to recover for the alleged conversion of such other property plaintiff excepted. E. D. Northrup, for the plaintiff. T. H. Dowd, for the defendant. BRADLEY, J.: The evidence tends to prove that the cow and heifer in question belonged to the wife of the plaintiff up to the time of her death, in December, 1885, and of that fact he gave the defendant notice prior to the sale. This levy of the execution was made July 17, 1886. The cow and heifer were then in the custody or possession of the plaintiff. And it is contended that on the assumption that the property was the estate of his deceased wife, the possession of the plaintiff enabled him to recover for the taking and conversion of it within the rule that, as against a wrong-doer or a party who is a stranger to the title, the lawful possession is sufficient to support an action. (Duncan v. Spear, 11 Wend., 54; Stowell v. Otis, 71 N. Y., 36; Wheeler v. Lawson, 103 N. Y., 40.) But this proposition as applied to an action for the conversion of property rests upon the ground that the plaintiff bringing it has some property general or special in the subject of the action. (Faulkner v. Brown, 13 Wend., 63; McLaughlin v. Waite, 9 Cow., 670; Scofield v. Whitelegge, 10 Abb. N. S., 104.) And his possession is evidence of such property in him, and the right of recovery cannot be HUN-VOL. XLVI 7 |