Sipperly and others, Commissioners of Highways, of the town of Schaghticoke agt. The Troy and Boston Railroad Co., 9 How. Pr. 83

Harris, Justice. By the 5th subdivision of the 28th

section of the general railroad act, (Sess. Laws, 1850, p. 224,) the defendants were authorized to construct their railroad across these highways; but they were also required “ to restore the same to their former state, or to such- a state as not unnecessarily to have impaired their usefulness.” It is upon the failure of the defendants to perform this duty that the first and third counts of the complaint seem to have been framed. By the Revised Statutes it'is declared, that “ whoever shall injure' any highway, &c., shall for every such offence forfeit treble damages.” (1 R.

S. 526, § 130.) The second and fourth •counts of the complaint are framed with a view to recover the damages contemplated by this act. The facts in the two sets of counts are substantially the same. This is “ unnecessary repetition.” The plaintiffs cannot, for. the same act, recover for the failure of the defendants to perform their duty under the provision of the railroad act already noticed, and also treble •damages under the Revised Statutes.

In short, the plaintiffs, ■upon their own showing, have but two causes of action, and yet these are put forward in the complaint, and the defendants :are required to defend them'selves, as though there were, in fact, four distinct causes of action, upon which the plaintiffs expected to recover. This cannot be regarded as a statement of the facts ■constituting the plaintiffs’ causes nf action without unnecessary .repetition. The chief difficulty I have had in the decision of the motion ■relates to the form of the order which should be made.

I was .at first inclined to think that the second and fourth counts should ibe stricken out, because it seemed at least doubtful whether the defendants could be made liable for the treble damages imposed :by statute for an injury to a highway. But, on the other hand, there may he some douht whether the plaintiffs can maintain an action to recover damages for the failure of the defendants to restore the highways to their former state. (See Cornell agt. The Butternutts and Oxford Turnpike Company, 25 Wend. 365; Cornell agt.

The Town of Guilford, 1 Denio, 510.) Under these circumstances, instead of striking out two of the counts, or requiring the plaintiffs to elect which of the counts they will retain, I think it better for the plaintiffs that the complaint should be set aside altogether, so that they may have an opportunity to state their case anew, and, if possible, avoid the difficulties to which I have referred. The order will so direct. The plaintiffs must be charged with the costs of the motion. Note.—This order was affirmed, upon appeal, at the Albany General Term in December, 1853.