way labor is assessed, and the acceptance of the list by any overseer to whom the same may be delivered, shall be deemed conclusive evidence of his acceptance of the office of overseer.

Copies of such lists go to the overseers of highways, whose districts include the lands, and in default of being worked out or paid, the overseers are required to deliver a list of persons in default to the commissioners of highways, who certify the same to the town board, and the town board is required to certify the amount of the arrearages to the board of supervisors, who are to cause such amount to be levied against the property assessed. See Highway Law, §§ 66, 67; Coleman v. Shattuck, 2 Hun, 499, aff'd 62 N. Y. 348.

§ 35. Names omitted.-The names of persons or corporations omitted from any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be assessed by the overseers in proportion to their real and personal estate to work on the highways as others assessed by the commissioners on such lists, subject to an appeal to the commissioners of highways.

Names to be added.-Where one owns lands in the same town in which he resides, but in another road district, and moves his residence thereto without having been assessed thereon for highway labor, he is not a new inhabitant within the meaning of the above section. But such a person may be regarded as having been "omitted from any such list," and his name may be added. Rinehart v. Young, 2 Lans. 354.

§ 36. Appeals by non-residents.-Whenever any non-resident owner of unoccupied lands shall conceive himself aggrieved by any assessment of any commissioner of highways, such owner, or his agent, may, within thirty days after such assessment, appeal to the county judge of the county in which such land is situated, who shall, within twenty days thereafter, hear and decide such appeal, the owner or agent giving notice to the commissioners of highways of the time of the hearing before the judge, and his decision thereupon shall be final and conclusive.

Appeals of non-residents to the county court and notices of such appeals to commissioners may be in the following form:

FORM NO. 29.

Appeal by Non-resident from Assessment for Highway Labor.

COUNTY COURT-County of Albany.

In the Matter

of the

Assessment of highway labor of L M, a non-resident owner of unoccupied lands in the town of...

of......

.....

L. M., a non-resident owner of unoccupied lands in the town county of...... considering (or T. W., agent of L. M., a non-resident owner of lands in said town, who considers) himself aggrieved in the assessment for highway labor by the commissioners of highways of said town, upon the following described lands, to wit: (Here describe them as in the list made by the commissioners) does hereby appeal from the assessment of said commissioners to the county judge of said county.

Dated this.... .......day of............

FORM NO. 30.
Notice of Appeal.

19....

To A. B., C. D., E. F., Commissioners of Highways of the Town of....... You are hereby notified that, considering myself aggrieved by your assessment for highway labor of the land owned by me in said town, I have this day appealed to the county judge of the county of

§ 37. Credit on private roads. The commissioners of highways of each town shall credit to such persons as live on private roads and work the same, so much on account of their assessments as the commissioners may deem necessary to work such private road, or shall annex the private roads to some of the highway districts.

See In re Howland's Bridge, 14 N. Y. Supp. 845.

§ 38. Certain assessments to be separate.-Whenever the commissioners of highways shall assess the occupant, for any land not owned by such occupant, they shall distinguish in their as

sessment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof; but when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year to work on the highways, on account of the same land.

§ 39. Tenant to deduct assessment.-Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the highways for such land, and shall actually perform such work, or commute therefor, he shall be entitled to a deduction from the rent due, or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord.

$40. Reassessment in case of neglect.-If it shall appear from the annual return of any overseer of highways, that any person or corporation who was assessed to work on the highways (other than non-residents), has neglected to work the whole number of days assessed, and has not commuted for, or otherwise satisfied such deficiency, the commissioners of highways shall reassess the deficiency to the person so delinquent, at the next assessment for work for highway purposes, and add it to his annual assessment; such reassessment shall not exonerate any overseer of highways from any penalty which he may have incurred under the provisions of this chapter.

§ 41. Omissions of assessors corrected.—Whenever the assessors sors of any town shall have omitted to assess any inhabitant or property in their town, the commissioners of highways shall assess the persons and property so omitted, and shall apportion highway labor upon such persons or property, in the same manner as if they had been duly assessed upon the last assessment

roll.

842. New assessments by overseers.-When the quantity of labor assessed on the inhabitants of any district by the commissioners of highways, shall be deemed insufficient by the overseer of the district to keep the highways therein in repair, such overseer shall make another assessment on the actual residents of the district, in the same proportion, as near as may be, and not exceeding one-third of the number of days assessed in the same year by the commissioners, on the inhabitants of the district; and the labor so assessed by an overseer, shall be performed or commuted for in like manner, as if the same had been assessed by commissioners of highways.

Making new assessment.-Whenever an assessment of highway labor made by a commissioner of highways is insufficient to keep the road in the district in repair, this section authorizes the overseer to make a further assessment on the residents of his district, not exceeding one-third the number of days labor assessed in the original assessment. See Farman v. Town of Ellington, 46 Hun, 41, aff'd 124 N. Y. 662; Weed v. Village of Ballston, 76 N. Y. 329.

A new assessment by an overseer of highways may be in the following form:—

FORM NO. 31.

New Assessment by Overseer of Highways.

The amount of labor assessed on the inhabitants of highway district No........, town of....... ...., being deemed by me, the undersigned overseer of highways in said district, insufficient to keep the highways therein in repair, I do therefore, pursuant to section 42 of the Highway Law, make a further assessment as follows:

§ 43. Sidewalks and trees.-The commissioners of highways may, by an order in writing duly certified by a majority of them, authorize the owners of property adjoining the highways, at their own expense, to locate and plant trees, and locate and construct sidewalks along the highways in conformity with the topography thereof, which order, with a map or diagram showing the location of the sidewalk and tree planting, certified by the commissioners, shall be filed in the office of the clerk of the town where the highway is located, within ten days after the making of the order.

Sidewalks in highways.-Sidewalks constructed along highways under authority of statute, either by the adjoining owners or by highway officers, are a part of the highway. Clapper v. Town of Waterford, 131 N. Y. 382; Village of Fulton v. Tucker, 3 Hun, 529. Sidewalks for the most part are constructed in what are known as unincorporated villages. When so constructed the same liability for defects therein exists as in the case of sidewalks in incorporated villages. The controlling principles in the case of sidewalks in villages is stated in the case of Saulsbury v. Village of Ithaca, 94 N. Y. 27, where it is said: "It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is a matter of discretion not to be regulated by the courts; yet when a sidewalk is built with or without its permission, it becomes responsible for its condition, and is bound so long as it exists, to keep it in order." So in the case of Birngrubber v. Town of Eastchester, 54 App. Div. 80, the court held where a town constructs a highway with a sidewalk for the use of the inhabitants of an unincorporated village, the duty to keep the sidewalk in proper order for travel applies to the same extent as to the center of the street. And in the case of Village of Fulton v. Tucker, 3 Hun, 529, it was held that when a person is injured in consequence of a sidewalk being out of repair, no action can be maintained against the owner of the adjacent premises, to recover damages therefor, unless the duty of keeping the sidewalk in repair has been imposed upon such owner by some statute or contract; sidewalks are a part of the highway, and the owner of the adjoining land has no greater duty in regard to keeping them in repair, than he has in regard to any other part of the highway.