13 N.Y.S. 791 | New York City Court | 1891
Plaintiff brought this action to recover damages for injuries alleged to have been sustained by him through the negligence of the defendants, by reason of a fence on a portion of the trust-estate held by defendants falling upon him. The defendant William H. Allee alone was served, and he alone answered. In his answer he denies, inter alla, all negligence in maintaining said fence, or that it was dangerous or insecure. He further alleged that the fence was blown down by a storm of extraordinary and unusual violence, and through the act of God. A further defense set up was that at the time that said fence was blown down the premises were in the possession and control of one Hart, a tenant, whose duty it was to keep said fence in repair. On the first trial of this action plaintiff obtained a verdict which, on appeal, was set aside and a new trial ordered, on the twofold ground that the storm which blew down said fence was of such unusual violence that the result should be treated as the act of God, and not as owing to the negligence of defendants, and also that defendant, as trustee, was not liable for negligence, but that the remedy of the plaintiff, if any, xfras against him personally.