the lodges in the district, should be paid to the wife of the deceased, if living, and if dead, to his children, and if there were none, then to such person as he may have designated prior to his death. The testator having neither wife or children, designated his mother as the beneficiary. His designation described the payment directed as "the $1,000 my heirs are to receive." His mother died before the insured, and no other designation was made. It was held, in an action to recover that sum, that the testator had no interest in the fund which could descend, or upon which a will could operate; but simply a power of appointment, which if not exercised prior to his death in the manner specified became inoperative, and that as the beneficiary named died before him, and no other designation was made as prescribed, the defendant was not bound to pay to any one. In that case the endowment reverted to the order under the peculiar provision of the charter; but in the case now before us, there is no such reversion, but a retention of the same for general relief.

The case of Bishop v. Grand Lodge, etc., 112 N. Y., 627; 21 N. Y. State Rep., 811, is pressed upon our attention as holding the contrary; but that decision is entirely consistent, in our judg ment, with the principles above mentioned. At the trial thereof no question was made but that if any person could recover, Mrs. Bishop, as administratrix, might do so, inasmuch as she was the actual beneficiary under the certificate. But the feature distinguishing the Bishop case from the one at bar, is, that by the terms of the agreement in that case the endowment was payable to the families, heirs or legal representatives of the deceased members. In the case before us there is no provision for the payment in any possible event to the legal representatives of the deceased. The deceased had no vested interest in the fund itself which can be made available to his personal representatives after his death. Exceptions allowed and verdict set aside, with costs to be paid by the plaintiff personally, and inasmuch as, if these views are correct, a new trial will be unavailing to the plaintiff, the complaint should be dismissed.

DWIGHT, P. J., and CORLETT, J., concur.

CLEON STONE, by Guardian, Resp't, v. THE TOWN OF POLAND,

App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) TOWNS-NEGLIGENCE EVIDENCE.

Where liability against a town is sought to be established by reason of the negligent omission of the commissioner of highways, the declarations of the latter are not competent evidence when made after the injuries have been received by the plaintiff.

(CORLETT, J., dissents.)

APPEAL from a judgment entered in the clerk's office of the county of Chautauqua on the 24th day of September, 1889, on a verdict of a jury at the circuit for $1,000 in favor of the plaintiff, and also from an order denying the defendant's motion for a new trial made upon a case and exceptions.

F. W. Stevens, for app'lt; A. C. Wade, for resp't.

MACOMBER, J.-The verdict was rendered upon a complaint demanding damages alleged to have been sustained by the plaintiff through the negligence of the commissioners of highways of the town of Poland, by which the plaintiff, on the 22d day of May, 1887, received personal injuries. After passing the bridge over Conewango Creek, the horse then driven by the plaintiff, either through fright at the new structure erected near the highway, or by accidentally stepping into a hole in the highway, caused the plaintiff to be thrown down an embankment.

The main question in the case was whether the commissioner of highways had omitted any duty which he owed to the traveling public in failing to make the place in question safe for travellers. It is quite evident that the verdict could not have been based upon the fact that the defect in the highway had continued so long as to charge the commissioner with negligence in failing to discover its existence. The negligence of the defendant was established, if at all, by the evidence of three witnesses, who testified, under objection and exception by the defendant's counsel, that the commissioner said on the day following the accident, that he supposed the road had been repaired, and that he had ordered a man to make such repairs at different times. The exception to this evidence presents the main ground upon which the appellant's counsel asks for a reversal of the judgment.

Chapter 700 of the Laws of 1881, making towns responsible for injuries where theretofore the commissioner of highways alone was held liable, has introduced no new rule of evidence. The admissions of a person not a party to the action are, in this class of cases as in all others, inadmissible, because they are mere declarations of persons not parties to the action and afford no reliable evidence upon which courts can safely pronounce judgment. It is only when the act or declaration of a person forms part of a transaction, and is a fact in issue, that such act or declaration is competent to be given in evidence, and then only in order to show the purpose or character of the transaction or to explain its meaning. In the case before us the liability of the defendant depends upon the performance or the non-performance of the duty of a third person, namely, the commissioner of highways. His act, declaration or omission of duty is competent in an action against the town only when the act, declaration or omission of duty occurred in the course of his business in respect of his duties as such highway commissioner. Had he stated to either of these three witnesses, before the time of the accident, that he had required a subordinate to repair the defect in the highway, there would have been presented conclusive evidence of his actual knowledge of the dangerous condition of the highway and of the necessity of repairs. That would be a fact germain to the case; but his unsworn declaration that he had given such directions, made after the accident, is not any evidence of such knowledge. The general rule undoubtedly is that the act, declaration or omission of duty of a party to a suit, whether given before or after the event, may be given in evidence against him. But where liability against a town is sought to be established by

reason of the negligent omission of the commissioner of highways, the declarations of the latter are not competent evidence when made after the injuries have been received by the plaintiff. As was said in the case of Stephens v. Vroman, 16 N. Y., 383-384: "The law does not regard as sufficiently authentic to influence a jury any statement which is not made under the sanction of an oath; and, in general, it further requires that the witness making the statement should be present at the trial, to the end that he may be examined by the adverse party, and that the jury may draw their own conclusions as to his sincerity and accuracy by his appearance and bearing upon the witnesses' stand. This rule does not, however, embrace the admissions of a party to the action; for upon equal plain principles, anything which a man says against himself may be given in evidence by his adversary, as it is not to be supposed that one will make a statement adverse to his own interests unless it is true."

These declarations were but a narrative of a past transaction. and were not admissible. In the case of Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y., 274, the plaintiff's intestate was struck by an engine while crossing the defendant's tracks and received injuries from which he subsequently died. Half an hour after the accident his declarations made by the sign language, he being a deaf-mute, were given in evidence to the effect that there was a long train passing the tracks; that he waited for it to go by and after it had passed attempted to cross and was struck by an engine which followed. It was held, after a thorough review of the authorities, that this was but a declaration of a past transaction and was incompetent; and the judgment, partially based upon such evidence, was reversed. See also the cases of The People v. Beach, 87 N. Y., 508; Whitaker v. Eighth Ave. Railway Co., 51 id., 295; People v. Davis, 56 id., 95; Tilson v. Terwilliger, id., 273.

For this reason, the judgment and order appealed from should be reversed, and a new trial granted.

A further point is made by counsel for the appellant, that evidence of repairs being made shortly after the accident, was not competent under the decision of the case of Corcoran v. The Village of Peekskill, 108 N. Y., 151; 13 N. Y. State Rep., 105. The last cited case holds that evidence, if offered for the purpose of showing that the party charged with negligence must have known before the accident of the dangerous character of the locality, was incompetent; yet, we do not understand that case to lay down any rule which prevents a witness from describing the condition of the place where an accident has happened, even though it does incidentally and argumentatively involve the fact that the party charged with maintaining it has, by making repairs thereon, by so much confessed to his dereliction, provided the evidence is material for some purpose which is legitimate. If we understand the rulings of the learned trial justice aright, he recognized the rule laid down in the case cited above, and admitted the evidence of the condition of the highway from the witness inspecting it after the accident, to show the presence of funds in the hands of the highway commissioner at the time of the acci

dent. For this purpose the evidence, though perhaps unnecessary, was competent. Getty v. Town of Hamlin, 28 N. Y. State Rep., 275. Judgment and order reversed, and a new trial granted, with costs to abide the event.

DWIGHT, P. J., concurs.

CORLETT, J. (dissenting).-On the 220 day of May, 1887, the plaintiff while attempting to cross a bridge over Conewango river, between Poland Center and Mud creek, in the town of Poland, county of Chautauqua, was thrown down an embankment constructed at the northerly approach of the bridge, and in the fall he received personal injuries, to recover damages for which he brought this action, which was tried on the 14th day of May, 1888, before Justice Haight and a jury.

It resulted in a verdict for the plaintiff of $1,000. A motion for a new trial was denied, and the defendant appealed to this

court.

The approach to the bridge was constructed by placing logs and chunks against the piles, extending it back from the stream to the bank, in this manner building up an embankment ten or eleven feet high next the bridge, covered with earth and gravel. The embankment at the end of the bridge was about eleven and onehalf feet high, growing less as the bridge was left. On each side of this embankment there was a perpendicular descent from the road-bed of eleven and one-half feet at the end of the bridge, and four or five feet from that point the descent was ten feet. The floor of the bridge was twelve feet in width, which continued until the approach proper was reached, and then the way was narrowed to about ten feet. There were no barriers on either side of the embankment, and it was claimed on the part of the plaintiff that there was a hole in the approach at the northerly side of the bridge, near the easterly side of the road, which narrowed it to about eight feet.

It was also claimed that this hole had existed a month prior to the accident, and had gradually grown in size until it was two feet in diameter. At the time of the accident the plaintiff was passing over the bridge from the south, and it is claimed that his horse shied and stepped into this hole, stumbled and fell over the embankment, carrying with him the carriage and the plaintiff.

There is no controversy on this appeal as to the plaintiff's right to recover unless errors were committed in the admission of evidence on the trial.

Orrin J. Tracy was sworn as a witness, and testified that the morning after the accident he went to the bridge and measured it. He also stated the situation as it appeared at the time. No objection was taken to this evidence. George W. Jones was also sworn as a witness for the plaintiff, and testified that on the 17th day of April, 1888, he examined, with others, the northerly end of the approach, and describes it. He was then asked: "In what condition was the bridge at that time?" This was objected to by defendant's counsel “as immaterial." The plaintiff's counsel said: "I simply want to show its condition when he made the examina

tion." The court stated: "You were not seeking to show that there has been anything done since?" To which plaintiff's coun sel assented. The evidence was received, and the defendant's counsel excepted. It is obvious that this evidence was not offered or received for the purpose of showing that repairs had been made after the accident to establish negligence. It was not so regarded by the defendant's counsel, as it was simply objected to as immaterial, but the court took pains to indicate that the evidence was not admitted to show subsequent repairs for the purpose of establishing negligence.

The doctrine of Corcoran v. Village of Peekskill, 108 N Y., 151; 13 N. Y. State Rep., 105, has no application; no error was com mitted in the admission of this evidence. Its purpose was simply to throw light upon the condition of the hole and its surroundings at the time of the accident.

Walter E. Wait, a witness for the plaintiff, testified that he saw the highway commissioner the next day after the accident and talked with him about it. He was then asked, "What did you hear him say about the road at that time?" "This question was objected to by the defendant's counsel on the ground that the commissioner's admissions were not binding upon the defendant." The objection was overruled and exception taken.

The witness then stated, he supposed the road was repaired; that he had ordered Campbell to do it two different times. Other evidence was given to the same effect under like objection and exception. The admission of those declarations is urged as error by the learned counsel for the appellant.

Chapter 700, § 1, of the Laws of 1881, provides "that the sev eral towns in this state shall be liable to any person suffering the same, for all damages to person or property, by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of said town are now by law liable therefor, instead of said commissioner or commissioners of highways."

Čommissioners of highways are public officers who have entire charge of the construction and repair of highways, and are in no sense agents of the town. Bidwell v. Town of Murray, 40 Hun, 191, 193.

The statute does not change the relation of the town to the highways, or the commissioners, so far as it relates to supervision or repairs. Those obligations still rest upon the commissioner as such, and not as agent of the town. The liability which this act imposes upon the town, confers upon it no control or supervision of the highways.

The learned counsel for the appellant concedes that declarations or statements of the commissioner before the accident would have been admissible. It is a familiar rule that admissions or declarations of an agent are not admissible, no matter when made, to bind the principal, unless they are a part of the res gesta. Thallhimer v. Brinckerhoff, 4 Wend., 394, 397; Dean v. Etna Life Ins. Co., 62 N. Y., 642.

N. Y. STATE REP., VOL. XXXIII.

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