2 N.Y.S. 836 | N.Y. Sup. Ct. | 1888
This action was brought to recover damages from the defendant by the plaintiffs, who were tenants, because of the negligence of his agents, which caused the building to fall and take fire. The referee found in favor of the defendants upon all the main issues, viz., that there was no negligence; that the defendant was not in possession, and consequently not liable for negligence, if there was any; that the fall of the building was not caused by the yielding, giving away, or breaking of its foundations or supports; and that the fire was not a natural and proximate result arising from the fall of the building. Although it is apparent that the judgment appealed from must be reversed because of error in the admission of evidence, in view of the numerous and intricate questions involved in the determination of the rights of the parties herein, lest by not considering them we may be deemed to have acquiesced in the conclusions of the referee, it seems to be necessary to
We will now consider briefly the main issues involved. The question as to whether or not the defendant was liable under any circumstances naturally first suggests itself. By the pleadings the defendant admits that he was the owner of the premises in question, but alleges that he has no knowledge or information sufficient to form a belief as to whether, at the time of the accident, the plaintiff was a tenant in the building mentioned in the complaint from him, or otherwise. In view of the contention now made by the defendant that he was not in possession of the building, had no tenant therein, and never had any, the form of this denial is very significant. It is consistent with the idea that his agent had done the letting, and he had no knowledge upon the subject; but it is inconsistent with the idea that he had never had any tenants whatever in that building. If the latter had been the fact, he did have knowledge sufficient to form a belief upon the subject. He knew that the allegation was untrue, and he would have denied the allegation as broadly as he has other allegations in the complaint. The claim that the defendant was not in possession, but that Abbott was tenant at will, and in possession, is inconsistent with the whole course of dealing of the parties. There is no pretense of any lease; no rent reserved; no right of possession in Abbott for a single instant. Upon the contrary, the defendant could have taken actual possession at any moment, and did actually pay Abbott for his services, who paid over to the defendant the amounts received over and above expenses, rendering detailed accounts of receipts and expenses, showing tenants named and rent received from each, and disbursements made in caring for and maintaining the property. Under the evidence showing the relations between the defendant and Abbott, if the defendant had demanded possession, and Abbott had insisted upon remaining in as tenant at will, demanding the statutory notice to quit, we do not think that any such claim could be upheld, but that the defendant would be adjudged in possession against Abbott, he having no right to possession except as the agent of the defendant. The whole of the transactions between the parties showed that Abbott was expected to and did account to the defendant as owner for the moneys realized by letting the premises, less expenses, and the sums agreed to be paid to him for his services.
The next question presented is as to the liability of the defendant because of the negligence of his servants. The referee has found that there was no negligence, and if this conclusion is borne out by the evidence, then no liability against the defendant, even if deemed in possession, has been established. The plaintiff'was tenant of a portion of the upper part of the building which fell, and Abbott attempted to repair the lower floor of the building so as to suit the demands of a new tenant. In doing so he interfered with the supports of the building, and for some reason which we cannot definitely determine from the evidence the building fell, and loss ensued. It is undoubtedly true that the foundation of this action is negligence, and that negligence must
That the defendant is not liable for the damage which was caused by the burning of the adjoining buildings seems to be clear from principles laid down in the adjudicated cases. Ryan v. Railroad Co., 35 N Y. 210. In that case, and in this respect it has not been overruled, it is laid down as the law of this state that where a house takes fire through the negligence of the owner or his servant, and the flames extend to and destroy an adjacent building, that such owner is not liable for the damage sustained by the owner of the second building by such burning. Applying this rule to the case at bar, although by the fall'of the building upon which the repairs were being made, its destruction by fire was to be anticipated, because fires were used therein, that the fire should spread and consume other buildings, was not a necessary or a usual result, and depended upon many circumstances, in the absence of any one of which this result would not have followed. We can see no distinction between the Case of Ryan and the one at bar. The fact that the same person
Daniels and Bartlett, JJ., concur.