The evidence as to a previous accident by the | witness tended to prove a cause of action in favor of the witness which would require as extended evidence as the case of plaintiff. The negligence of defendant could not be thus proved; and the admission of such evidence was error for which a new trial should be granted.

Dale v. Delaware etc. R. R. Co. 73 N. Y. 468; Hawley v. Hatter, 9 Hun, 134.

III. The court should have charged, as requested by defendant, "That if the obstruction was visible and apparent to any passer-by the plaintiff was guilty of negligence in attempting to cross it;" and "If the defect complained of was such as would be seen by any ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect; but she should have gone around the

Salter v. Utica etc. R. R. Co. 75 N. Y. 276; Pakalinsky v. N. Y. Cent, etc. R. R. Co. 81 N. Y. 424; Durkin v. Troy, 61 Barb. 437, 456.

The rule is also well settled in other States that a municipal corporation is not liable for an accidental injury happening in the daytime, if there is sufficient space to walk which is free from ice.

Quincy v. Barker, 81 Ill. 300; O'Laughlin v. Dubuque, 42 Iowa, 539.

If by a proper use of his faculties a passenger could have discovered an approaching train, and fails to do so, he is chargeable with contributory negligence and cannot recover.

Salter v. Utica etc. R. R. Co. 75 N. Y. 273; Ernst v. Hudson River R. R. Co. 39 N. Y. 61; Wilcox v. Rome etc. R. R. Co. 39 N. Y. 358, 366.

IV. The place where the plaintiff was injured, although open to the public, was not in fact a public street over which the defendant had jurisdiction.

The owner could not by the mere removal of his fence impose on the public this strip of land as a street; nor could the public deprive him of any right or interest or control over it by that circumstance.

Rozell v. Andrews, 4 Cent. Rep. 209; S. C. 24 N. Y. Week. Dig. 448; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 269 and cases cited.

V. It is not alleged nor was it proved that this claim has ever been presented to or acted upon by the auditors of the Village of Saratoga Springs. The law is explicit that "Until such claims are presented to and acted upon by said auditors no suit or action in law can be maintained thereon."

Laws 1875, chap. 517.

The motion for a nonsuit should have been granted. A noncompliance with this require ment can be raised by the defendant at any stage of the action.

Reining v. Buffalo, 3 Cent. Rep. 294, 102 N. Y. 308; Minick v. Troy, 83 N. Y. 514.

VI. There is no duty on the defendant to clear off its sidewalks from snow and ice, because no power has been conferred upon it to raise and expend money for such purpose. The duty imposed by law on a municipality is only commensurate with the power conferred. Absence of necessary funds or the legal means

of procuring them will excuse the performance of any duty. These are legal axioms. Hines v. Lockport, 50 N. Y. 238; Weed v. Ballston Spa, 76 N. Y. 335.

The charter of the Village of Saratoga Springs differs essentially from the charters of those villages which have been held liable to keep their sidewalks clear of snow and ice. It contains a complete plan to compel owners of property to build, grade, repair and keep free from obstructions all the sidewalks adjoining their premises. It does not authorize the raising of any money by tax for this purpose, but by the clearest implication excludes it.

There is a recognized difference between streets in cities or incorporated villages and roads and highways designated in the general highway system of the State.

Re Application of Woolsey, 95 N. Y. 135; Re Lexington Avenue, 29 Hun, 303.

The uniform legislation of the State recognizes the fact that sidewalks are no portion of the highways, and that there is no authority to expend any portion of the highway fund for the construction of sidewalks.

The village superintendent testified that he had no funds in his hands for the purpose of cleaning off sidewalks. This was a defense and for this reason the complaint should have been dismissed.

Garlinghouse v. Jacobs, 29 N. Y. 297; Hover V. Barkhoof, 44 N. Y. 113, 120; Hines v. Lockport, 50 N. Y. 236; Weed v. Ballston Spa, 76 N. Y. 335; People v. Little Valley, 75 N. Y. 316.

It will be found on examination, in every case where a village has been held liable for negligence in not repairing or removing obstructions from sidewalks, that there was some provision in the charter casting that duty upon the municipality.

Hiller v. Sharon Springs, 28 Hun, 344. In Weet v. Brockport, reported in a note to Conrad v. Ithaca, 16 N. Y. 161, it is expressly stated that "It appeared that the defendant had ample funds to make and complete the improvement in question," and it was held liable on that ground. The case of Conrad v. Ithaca was for damages for negligently constructing a bridge; and the duty of defendant and its power to raise funds was unquestionable.

In Hickok v. Plattsburgh, 15 Barb. 427, reversed, 16 N. Y. 161, the main question was whether the corporation was liable for the negligence of the trustees, and it was held that it was. Messrs. L. B. Pike and Charles M. Davison, for respondent:

The street in question was one of the streets or highways of the Village, over which it had jurisdiction and which it was bound to keep in repair. It had been used by the Village for more than twenty years, which presumes a dedication and acceptance by user.

Pearsall v. Post, 20 Wend. 115; Hickok v. Plattsburgh, 41 Barb. 135; Post v. Pearsall, 22 Wend. 477; Wiggins v. Tallmadge, 11 Barb. 457; People v. Lochfelm, 2 Cent. Rep. 874, 102 N. Y. 1.

This dedication cannot be defeated by showing that the owner of the servient estate did not grant it.

19 Wend. 309; 14 Barb. 511; 8 Pick. 504; 36 Vt. 503; 32 Vt. 183; 10 Fost. 446.

Charter, § 39.

The Corporation or its officers did not do nor attempt to do anything; and the defense of want of power is plainly an afterthought. The burden of showing want of means was upon the defendant, and this is not shown either by the charter or the evidence.

Weed v. Ballston Spa, 76 N. Y. 335. The corporation defendant had constructive notice, at least, of the condition of the sidewalk. Constructive notice was sufficient.

Requa v. Rochester, 45 N. Y. 129; Todd v. Troy, 61 N. Y. 506; Kinney v. Troy, 38 Hun, 287.

The time in which the condition existed was for about two weeks or more; and the jury determined that this time was sufficient to infer knowledge of its condition by defendant.

Deyoe v. Saratoga Springs, 3 Thomp. & C.

504.

This court is concluded thereby. Goodfellow v. New York, 1 Cent. Rep. 21, 100 N. Y. 15.

It was the duty of defendant to keep the street clear of this obstruction, keep the sidewalk in condition that the traveler might safely pass over it, no matter by whom or how the obstruction was placed there; and if, after actual or constructive notice, it neglected its duty, it is made liable for any damages resulting therefrom to a traveler whose own negligence does not contribute to the injury.

Todd v. Troy, 61 N. Y. 509; Weed v. Ballston

Earl, J., delivered the opinion of the court: The plaintiff commenced this action to recover damages for injuries received by her from falling upon one of the sidewalks in the Village of Saratoga Springs, on the 9th day of January, 1883. At that time snow and ice had accumulated upon the sidewalk on the southerly side of Lake Avenue, opposite the premises of one Andrews, until the embankment was about three feet thick above the surface of the ground, and two and one half feet thick above the snow upon the sidewalk easterly and westerly of the premises mentioned. While she was passing along the sidwalk over this embankment, she slipped down and received the serious injuries of which she complains. This snow and ice had fallen from time to time from the roof of a barn standing near the sidewalk, and had been there for at least two weeks.

Under its charter (chap. 220, Laws 1886) the Village of Saratoga Springs is constituted a separate road district, exempt from the superintendence and care of the commissioners of highways of the Town of Saratoga Springs; and the trustees are constituted and declared to be the commissioners of the Village; they are authorized to appoint a superintendent who is to have the care and supervision of the streets and sidewalks of the Village, subject to their general control and direction; they are empowered, and it is made their duty to establish such ordinances, by-laws and regulations as they may think proper and reasonable among other things, to establish the grade of the streets and sidewalks, to provide for and regulate the paving, repaving and improving streets and sidewalks and the cleaning of streets and sidewalks as often as may be necessary; and ample power is conferred upon the Village and its trustees to raise money for the purpose of discharging the duties and obligations thus imposed upon it in reference to its streets and sidewalks.

That under such a charter it was the duty of the defendant to keep its streets and sidewalks in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons without fault on their part, receiving injuries upon its streets, has been settled by many decisions in this State and is no longer open to question. Conrad v. Ithaca, 16 N. Y. 158; Requa v. Rochester, 45 N. Y. 129; Hines v. Lockport, 50 N. Y. 236; Todd v. Troy, 61 N. Y. 506; Evans v. Utica, 69 N. Y. 166; Weed v. Ballston Spa, 76 N. Y. 329; Saulsbury v. Ithaca, 94 N. Y. 27; Dubois v. Kingston, 3 Cent. Rep. 58, 102 N. Y. 219.

The rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages and to cities; and the same principles which impose liability upon the one class of corporations impose it upon

the other.

If the municipal authorities have actual no

But the defendant seeks to escape liability upon various grounds which will be separately

noticed :

Section 54 provides that "For the purpose of providing the means of sustaining the several departments and defraying the expenses of the Corporation, the board of trustees are authorized to levy and collect an annual tax in amounts and for the purposes as follows: 1. Not exceeding $7,500 for the support of roads, bridges, culverts, streets, lanes and alleys within the Village."

We think that there was abundant evidence from which the jury could properly find that this street, for its whole width, had been dedi cated to and accepted by the public, and that it was legally and lawfully one of the streets of the Village. Cook v. Harris, 61 N. Y. 448; People v. Lochfelm, 2 Cent. Rep. 874, 102 N. Y. 1. 2. It appears sufficiently that the defendant either had the means to clear this sidewalk of the accumulation of ice and snow or the ability to raise the means. By section 38 of the village charter it is made the duty of the village superintendent in the month of April of each year to report in writing to the board of trustees the general condition of "the streets, bridges, culverts, sidewalks, lanes and alleys with estimates of the probable expense to put them in good repair. He shall also within ten days prior to each annual village election report in writing to the board of trustees, the condition of the streets, bridges, culverts, sidewalks, lanes and alleys, with the probable amount necessary to keep them all in good order during the coming year."

Section 39 provides that "Whenever any repairs shall be necessary on any public street, bridge, culvert, sidewalk, lane or alley in said Village, the village superintendent shall attend to such repairs; and when there are no funds in his hands to make such repairs, he shall report the fact to the board of trustees, with his opinion as to the amount necessary for such purpose, to the end that the means may be provided and drafts drawn upon the particular fund belonging to the highway department to make such expenses. He shall be subject to the same direction and control of the commissioners of highways of the Village in the care and supervision of the public streets, bridges, culverts, sidewalks, lanes and alleys therein,

they are placed under the care and supervision of the trustees, and the superintendent under their direction is bound to attend to and make the repairs upon them as well as the streets. The word " streets" is used here in its broad sense and was intended to include not only the road way for teams but the sidewalks for pedestrians. Re Burmeister, 76 N. Y. 174.

While it is made the duty of the Village to keep the sidewalks in repair, it would be quite extraordinary if there were no provision in the charter by which it could procure funds for the purpose of discharging that duty. We think, therefore, that the word streets" should be held to mean the entire space between the outer lines of the streets, including the sidewalks, and that the money authorized to be raised under that section could be used as well for the repair of the sidewalks as of the road bed in the centre of the streets.

The only evidence given on the trial to prove that the Village had no funds to repair this sidewalk was the evidence of the village superintendent who testified that he did not have any money in his hands for that purpose. But there was no proof that there was not sufficient funds in the treasury of the Village which under the charter could have been placed in his hands and used for that purpose if he had applied for it.

3. It is further objected that the plaintiff's claim was never presented to or acted upon by the auditors of the Village as required by chapter 517 of the Laws of 1875. A sufficient answer to this objection is that it was in no way made upon the trial, and is not presented to us by any proper exception. But it may, however, be further said that the plaintiff's claim is not one of those which is required to be audited under that Act. The claims there referred to are clearly claims for expenditures made on behalf of the Village, or for services rendered for or goods or materials furnished to the Village. And this claim, therefore, required no audit.

4. Upon the trial the plaintiff offered in evidence one of the ordinances of the Village which imposed penalties upon persons who should throw any snow or ice from roofs upon sidewalks, and upon the owners or occupants of lots or buildings who should neglect to keep

In this we perceive no error harmful to the defendant. It was not held liable for failure to make proper ordinances, or to enforce the ordinance proved. So far as it had any effect whatever it would seem to have been beneficial to the defendant, as it showed that it had so far discharged its duty by passing proper ordinances for keeping the sidewalks free and clear of ice and snow. It had no material bearing in favor of the plaintiff, except to show that the trustees were aware of the importance of removing such obstructions from the sidewalks of the Village and of their dangerous character.

5. It is also claimed that there was error in allowing one of the witnesses to testify, against the objection of the defendant, that she fell down once at the same place where the plaintiff was injured. She was called by the plaintiff to testify to the condition of the walk, and testified that she recollected its condition; that the snow was packed very hard from falling from the roof of the barn; that the embankment at each end was slanting and that a person had to be very careful or fall; that she knew that to be a fact and spoke from experience; and then she was permitted to say that she fell there once herself. That evidence was given, apparently, to show how she came to know the condition of the walk at that place. But such evidence has been held to be competent. Quinlan v. Utica, 11 Hun, 217, affirmed in 74 N. Y. 603.

6. The evidence tended to show that this embankment of snow and ice was perfectly visible, that the plaintiff must have seen it as she passed over it, and that there was a light covering of recent snow over the ice. The defendant requested the court to charge the jury "That if the obstruction was visible and apparent to any passer by, the plaintiff was guilty of negligence in attempting to cross it;" also that "If the defect complained of was such as would be seen by an ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she should have gone around the same."

The court declined to charge as requested, and the defendant's counsel excepted. The charge of the judge sufficiently laid down the rule of law as to plaintiff's contributory negligence; and it would not have been proper for the judge to charge as matter of law that it was negligence for the plaintiff, under the circumstances disclosed in this case, to attempt to pass over the embankment. Evans v. Utica, 69 N. Y. 166; Brusso v. Buffalo, 90 N. Y. 679; McGuire v. Spence, 91 N. Y. 303; Bullock v. Mayor, 99 N. Y. 654.

In this Village it appears that there were seventy-five miles of sidewalks and but one superintendent having charge of all the streets and sidewalks. It is manifestly difficult, under such circumstances, for such a village to keep its sidewalks at all times clear of snow and ice; and the proof should be very satisfactory, showing clear neglect of duty, before liability for injuries caused by snow and ice should be imposed.

The evidence from which such notice could be imputed to the defendant as would charge it with negligence in not removing this embankment of snow and ice was very meager and slight; but we cannot say that it was not sufficient for the consideration of the jury. Indeed it was not claimed at the trial or on the argument before us that it was not.

Actions of this nature are becoming quite numerous; and they may well cause some alarm to those who bear the burdens of village taxation. But they must rely for their protection against unjust accident claims on the justice and sound sense of jurors, and on the power which the courts below possess to deal with verdicts which are excessive in amount or against the weight of evidence.

We, therefore, reach the conclusion that the judgment should be affirmed, with costs. All concur, except Peckham, J., not sitting.

3.

4.

N. Y.

4

It is not error for the district attorney, upon the cross examination of the prisoner, to ask him if he had been arrested for shooting a man, where his counsel had already proved the same fact by another witness.

It is not error for the judge to refuse to charge the jury in relation to the acts necessary for the corroboration of an accomplice, that they must be inconsistent with the innocence of the defendant and which exclude every hypothesis but that of guilt."

The rule as to corroboration of an accomplice only requires a corroboration as to some material fact which goes to prove that the prisoner was connected with the crime.

One who had no knowledge that a crime was to be committed, and who neither aided nor abetted in its commission, is not an accomplice.

591