Opinion of the Court, per DANFORTH, J. of the provision of the Revised Statutes (2 R. S. 473, §§ 92, 93), and in like manner merely prescribes the mode of enforcing such rights and claims as belong to the supervisor or the town, without defining them or declaring their nature or extent. But the facts presented by the appellant bring the case within other statutes, devolving a duty upon the town, which, being performed at an expense, entitles it to reimbursement at the hands of the wrong-doer who occasioned it. The facts found are that by a break in the Erie canal, in the town of Gaines, caused by the negligence of the agents and officers of the state, "three public bridges and a culvert in that town were injured to the extent of $1,200." By statute the primary responsibility for the maintenance and repair of highways and bridges is cast upon the several towns of the state. It is true that the duty of care and superintendence over them is imposed upon the commissioners of highways, and they are to cause highways, and bridges over streams intersecting highways, to be kept in repair. (1 R. S., chap. 16, title 1, art. 1.) Their action, however, whether in ordinary (1 R. S., supra, §§ 3, 4), or extraordinary cases (Laws of 1832, chap. 274; Laws of 1857, chap. 615; Laws of 1858, chap. 103), is at the expense of the town and to be met by assessment in the same manner as other town charges. (1 R. S., supra, §§ 3, 4.) So the statute (Laws of 1881, chap. 700), entitled "An act to provide for the liability of towns and commissioners of highways in certain cases," lays upon the town a liability for all damages to persons or property by reason of "defective highways or bridges in such town." Being charged with these various duties and made subject to liability, it would seem to follow that the town had such an interest in the preservation of its bridges as would give a right of action and a remedy over against any person who, intentionally or by negligence, made repair or rebuilding necessary. The statute last cited (Laws of 1881, supra), expressly gives an action to the town against its commissioners of highways, if the defect complained of occurred by his misconduct or neglect, thus extending to the officer a principle well settled Opinion of the Court, per DANFORTH, J. in relation to others, viz., that where it appears that an obstruction or defect in a highway, which occasioned an injury, was caused by a third person, the corporation may have a remedy over against him. The same principle makes one causing injury to a bridge, which it is the duty of the town to repair and keep in order, liable to the town for the necessary expense of reparation. In the case now before us the state occupies that position. The negligence of its agents caused injury to the bridges of the town, and the damages claimed are such only as will restore money actually expended by it. We think, therefore, the claim should have been allowed as one prosecuted by a proper party. We are referred to no reported decision, nor, indeed, to the decision of any court, that there may not be in the town such property, or at least such incident of property, but only to an unreported decision wherein the canal appraisers held that the highway was not the property of the town and so the town not entitled to recover. The decisions of the courts, cited by the attorney general in behalf of the respondent, do not require us to adopt that conclusion. The reason on which the judgments in those cases rested cannot apply here, for the facts are different. They are the following: Cornell & Clarke v. Butternutts & Oxford Turnpike Company (25 Wend. 364), in which the plaintiffs, as commissioners of highways of the town of Guilford, sued the turnpike company for taking possession of a highway and appropriating it to their purposes previous to the appraisal of damages and payment of the same. It was a case of interruption, and the remedy of the plaintiffs was said to be by "indictment, summary abatement or penalty," or that prescribed by the statute relating to turnpike companies (1 R. S. 583, § 29), upon which the right to compensation was founded, and that private remedies were confined to the owner of the soil "or persons who had sustained a particular injury." If I am right in the views already stated, the claimant is in the latter class. Morey v. Town of Newfane (8 Barb. 645), was an action for damages for injury to horses by defect in the highway. It was held that under no circumstances Statement of case. would the action lie. But, however it might be as the law then (1850) was, it is clear that the law of 1881 (supra) gives in certain cases such remedy. (Mark v. Town of New Utrecht, 104 N. Y. 557.) The same remark applies to the People v. Auditors of Little Valley (75 N. Y. 316). The Town of Fishkill v. Plank Road Company (22 Barb. 634, 647) and Town of Galen v. Plank Road Company (27 id. 543), were actions upon agreements to which the town was not a party. The People v. Pennock (60 N. Y. 421), involved nothing else than the destruction of a bond given by a supervisor. None of these cases, nor the principle on which they rest, touch the question presented upon this appeal. On the other hand, it is within the reason which led to the decision in Bridges v. Supervisors (92 N. Y. 570). It should be answered in favor of the appellant and a remedy allowed, because the town was under an obligation to keep in repair its bridges and make them suitable for public travel, so that it shall incur no liability from their defects, and it may have compensation from one who wrongfully, by negligence or otherwise, makes such repair necessary and so exposes it to the expenditure of money. And since no other objection to the claim is made, we think the award should be reversed and the claimant allowed the sum demanded, with interest from the commencement of the proceedings, viz., the 24th of August, 1881, and costs. All concur. Ordered accordingly. 110 237 130 382 110 237 HENRIETTA H. WRIGHT, Respondent and Appellant, v. BANK OF THE METROPOLIS, Appellant and Respondent. Where a pledgee of corporate stock, acting in good faith and under an honest mistake, converts it by an unauthorized sale thereof and refuses to replace it on demand, it is the duty of the owner to replace it himself within a reasonable time after notice of sale, and the proper measure of damages for the conversion is the highest market-price during such reasonable time. The rule in this respect is the same, whether the pledgee is a broker, who purchased and was carrying the stock on a margin for a customer, or Statement of case. whether the owner had paid in full for the same and was holding it as an investment. As to what is a reasonable time, is, where the facts are undisputed, a question of law for the court. (Argued June 7, 1888; decided October 2, 1888.) CROSS-APPEALS from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiff, entered upon an order made January 13, 1885, which denied defendant's motion for a new trial, reversed an order granting plaintiff's motion for a new trial, and directed judgment on a verdict. This action was brought to recover damages for the alleged unlawful conversion of certain stock. The following are the material facts. About the 7th of January, 1878, one Henry C. Elliott received from his correspondent in Rome, N. Y., B. Huntington Wright, his check for $2,000, payable to the order of Elliott, with a request from Wright that he, Elliott, would meet some drafts Wright would draw on him, and obtain payment from the check. He accordingly honored the drafts, and having indorsed the check procured its discount by the defendant. It was not paid when presented, and Elliott, being unable to learn the reason, went to Rome to see the drawer of the check. He then learned that the drawer had made a general assignment for the benefit of his creditors and stated his inability to do anything for Elliott. Finally, Elliott succeeded in obtaining a number of shares of stock in different railroad companies, as collateral security to the check then lying protested in the hands of the defendant. The history of the interview resulting in the procuring of the stock by Elliott, as given on the trial, is contradictory, but the verdict of the jury shows that they believed that which was given on the part of the plaintiff. From the evidence thus given. it appears that the stock was in reality the stock of Benjamin H. Wright, the father of B. Huntington Wright, and that it was delivered by him to Elliott voluntarily, and for the purpose of being used as a collateral to his own note at six Statement of case. months, which was to be used to take up the check, but the stock was not to be sold for six months as it was then selling in market much below what the father thought the stock was really worth. The stock was owned by Mr. Wright, as he said, for an investment, and he had no idea of selling it, but he allowed Elliott to take it because he felt sorry for his situa tion and wanted to help him as far as he reasonably could out. of the difficulty he was in. Elliott took the stock, went to New York and had a talk with the cashier and vice-president of the defendant, who reserved their decision as to whether they would take the note and the stock. Subsequently, and on the seventeenth of January, the cashier wrote that the stock being non-dividend paying and the note six months paper, it would be impossible to get it through the board, and he suggested it would be much better to obtain Mr. Wright's consent to sell the stock and to make his (Elliott's) account good in that way. Elliott inclosed this note to Mr. Wright in a letter addressed to "B. H. Wright," and in response, and on the twenty-second day of January, Benjamin H. Wright, the owner of the stock, wrote Mr. Rogers, the cashier of defendant, refusing to sell the stock or to permit of its being sold. Mr. Rogers had never seen either of the Messrs. Wright and did not know there were two, and subsequently, and, about the twenty-ninth of January, Elliott told him that Mr. Wright authorized the sale of the stocks, and they were immediately sold, less commissions for $2,261.50. On the part of the plaintiff, it was claimed that Mr. Wright, the true owner of the stocks, never gave any such authority to sell them, and that he was unaware that they had been sold until May 9, 1878. February 14, 1881, the stock reached the highest price down to the day of trial, selling on that day for $18,003. This action was commenced October 7, 1879. Mr. Wright, the owner of the stocks, was about seventy-six years of age in May, 1878, and in the latter part of that year went south and returned early in the year 1879. On the 9th of May, 1878, he made a demand upon the defendant for the |