Opinion
May, 1933.
Order reversed on the law, with ten dollars costs and disbursements, and motion to dismiss the complaint denied, with ten dollars costs, with leave to defendant to answer within ten days from the entry of the order herein. It is likely that the theory of the cause of action as now stated was not in the mind of the pleader when the complaint was drafted, but the plaintiff was seeking to state a cause of action under section 74 High. of the Highway Law. We must, however, view the complaint in its most favorable light on this motion to dismiss. Section 138-d Town of the Town Law (added by chapter 152 of the Laws of 1927) permitted the town board to provide for the maintenance of traffic standards. It appears sufficiently from the allegations of the complaint that the plaintiff was injured by coming into contact with such a standard negligently placed and permitted to be maintained through the negligence of "other officers" or "officials" of the town. It may be inferred, although they are not named, that these were the officers constituting the town board. The supervision and control of such traffic standards did not come within the general ambit of prescribed duties of the town superintendent as defined by the Highway Law, section 47 (as amended by chapter 561 of the Laws of 1920). The motion to dismiss was made under rule 107, subdivision 2. The complaint does not show lack of jurisdiction in the court of the subject of the action. Very likely the complaint will require amendment before trial. (See Civ. Prac. Act, § 111.) Lazansky, P.J., Young, Hagarty, Carswell and Davis, JJ., concur.