
    Charles McCabe, Respondent, v. Sarah J. O’Connor and Others, Appellants, Impleaded with Others.
    
      Infa/nt—liable /or Ms defective wall which falls on his' neighbor’s land—intent '■ immaterial—the fact that he has a general guardian is not a deferne—effect of hearing an appeal on the judgment roll.
    
    Upon the hearing of an appeal on the judgment roll in an action brought to recover damages resulting from the falling, on the plaintiff’s land, of a wall which ’ stood on the line between the property of the parties to the action, it appeared that at the time of the accident all the defendants were infants and lived on the premises with their father, who had been appointed general guardian óf their persons and property, and was such when the wall fell, and to whom complaint had been made that the wall was defective, which proved to be the fact. '
    
      Held, that infancy was not a defense to the action;
    That an infant, as the owner or occupant of lands, is under the same responsibility as any other person for a nuisance or for the negligent use or management of the property. The question of intent is immaterial;
    That the fact that the infants had a general guardian, whose duty it was to keep • the premises safe, but who had failed to do his duty, did not relieve the infants from liability.
    Herrick, J., dissented.
    Where an appeal is heard on the judgment roll the appellant must show that the trial court could not, in any view of the facts found, properly order a judgment for the respondent.
    Appeal by Sarah J. O’Connor and three other defendants from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 3d day of October, 1895, upon the report of a referee.
    The action was commenced on April 27, 1892.' The judgment was in favor of the plaintiff for the sum of $200, with interest from the commencement of the action, besides costs.
    The action was brought to recover damages to plaintiff’s property arising from the falling of a wall that was on defendant’s property on the line between it and plaintiff’s lands.
    
      Henry J. McCormick and James B. Egan, for the appellants.
    
      Marcus L. Akin, for the respondent.
   Merwin, J.:

The record in this case, does not contain the evidence. The appeal is heard on the judgment roll. In such a case it is' incumbent on the appellants to show that the trial court could not in any view of the facts found properly order a judgment for the respondent. (Agri. Ins. Co. v. Barnard, 96 N. Y. 525.)

The appellants are four in number, three of whom are now infants and the other one was an infant at the time of the injuries complained of.

It is found by the referee as matter of fact that on the 15th day of September, 1890, John O’Connor, them father, was appointed general guardian of their persons and property, and duly qualified and immediately entered upon his - duties ag such,, and has so continued as to those, not of age. up to the present time; “ that all of said infants lived with their father and general guardian on the premises mentioned in plaintiff’s complaint, on which the wall in question was erected at the time said wall fell, and for several yearn previous thereto;

Thvrd. That during the year 1891, and for several years previous, defendant John H. Malone lived on said premises mentioned in said complaint, occupied by the infant defendants;

“ Fov/rth. That during the year 1890 and for some time prior thereto, the plaintiff owned the premises described in the complaint, situated on the east side of Congress street, in the Fifth Ward of the city of Troy, N. Y.;

Fifth. That at the time and for more than three years prior to the commencement of this action the defendants were the owners of a stone wall and the premises on which it stood, to wit, lots Flos. 186, 187, 188, 189 and 192, adjoining, plaintiff’s property on the east, as described in the complaint;

Sixth. That on the 25th day of March, 1891, said wall fell on plaintiff’s property;

Seventh. That said wall was defective and fell through the carelessness and negligence of the defendants;

Eighth. That about five months before said wall fell the defendant John H. Malone was notified personally of its defect;

Ninth. That by reason of defendants’ negligence and the falling of the wall as aforesaid plaintiff was damaged to the amount of two hundred dollars.” .

As matter of law the referee found that the plaintiff was entitled to judgment against the defendants for damages in the sum of $200 with interest from the commencement of the action and costs.

The claim of the appellants is that, as they were infants and had a general guardian at the timé of the injury, they are not chargeable with negligence, and are not responsible for the injury.

In 2 Kent’s Commentaries, 241, it is said : Infants are liable in actions arising ex deUeto, whether founded on ■ positive wrongs or trespass or assault, or constructive torts, or frauds.”

In Cooley on Torts (2d ed.), 122, it is said: An infant as the owner or occupant of lands is under the same responsibility with other persons for any nuisance created or continued thereon to the prejudice or annoyance of his neighbors, and for such negligent use or management of the same, by himself or his servants, as would'render any other owner or occupant liable to an-adjoining proprietor. Here, also, the intent is immaterial. The wrong consists in the fact that enjoyment of one’s own property or rights is diminished or destroyed by an improper use or unreasonable use or misuse of the property of another.”

Morain v. Devlin (132 Mass. 87) was an action in tort for personal injuries occasioned to the plaintiff by the defective condition of a building owned by'the defendant, who was a lunatic, and of whom a guardian had been appointed, who, at'the time of the injury, had the care and management of all her property. It was held that the defendant was liable, and it was said: This is not an action for a Wrong done by the personal act or neglect of the lunatic, but for an injury suffered by reason of the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which the lunatic himself, and not his guardian, is the owner. (Harding v. Larned, 4 Allen, 426; Harding v. Weld, 128 Mass. 587, 591.) The owner of real estate is liable for such a defect, although not caused by his own neglect, but by that of persons acting in his behalf or under contract with him (Looney v. McLean, 129 Mass. 33; Gorham v. Gross, 125 id. 232; Bartlett v. Boston Gas Light Co., 117 id. 533), and there is no precedent and no reason for holding that a lunatic, having the benefits, is exempt from the responsibilities of ownership of real estate.” The same doctrine is asserted in 16 American and English Encyclopaedia of Law, 409. This doctrine would apply as well to infants as to lunatics.

The general rule is that a person must so use his property as not to injure that of his neighbor. (Moak’s Underhill on Torts, 229.) In Vincett v. Cook (4 Hun, 318) it was held that failure on the part of the owner of a building to keep it in a safe condition and resulting damages throw upon the owner the burden of showing that the building was safe so far as diligent examination would show. The same view was taken in Mullen v. St. John (57 N. Y. 567). These cases related to the walls of a building, but there is no good reason apparent why the principle should not apply to a case like the present where the wall was entirely on defendant’s land and was about twenty feet high, as appears from the complaint and answer. Nor is it clear that an owner in such a situation should be relieved of liability by saying that he is an infant and has a general guardian whose duty it was to keep the premises safe, but failed to do his duty.

Negligence is found here as a matter of fact. What the proofs were we cannot say, as the evidence is not here. It may have been shown that negligence was based on their personal acts. It was found that they occupied the property. If occupants, clearly they might under proper proofs be charged with negligence. (2 Addison on Torts, 1126; Schouler’s Dom. Rel. [2d ed.] 564.) We cannot reverse if in any view of the facts found the judgment was proper.

But it is said that no notice to the appellants was found. If there was. no failure of duty until notice, then the finding of negligence presupposes the existence of such notice or knowledge as would he requisite to call upon the owner to act, and involves a finding to that effect. Notice is found to a co-tenant in occupation. If .the infants were to be deemed occupiers, it would not follow as a maty ter of course that they would be entitled to notice.

■ The appellants have not, I think, shown, that in any view of the facts found the judgment was not proper. It should, therefore, be affirmed. . .

Parker, P. J,, and Landon, J., concurred; Putnam and Herrick, JJ., dissented.

Herrick, J. (dissenting).:

I am unable to concur in the opinion of Justice Merwin in this case-. Negligence is a violation of or omission to perform some duty. There can be no duty unless there is a power to fulfill it.

The guardian has absolute control of the lands and property of his ward. By statute it is the duty of the guardian not to make or suffer any waste, sale or destruction of' such things or of such inheritance, but [he] shall keep up and sustain the houses, gardens and other appurtenances to the lands of his ward by and with the issues and profits thereof, or with such other moneys belonging to his ward as shall be in his hands.” (2 R. S. 153, § 20 [Birdseye ed., p. 1292, § 44]; 2 Kent’s Comm. 228.) The- guardian can lease the land of his ward until he attains the age of twenty-one years, and may maintain an action of trespass or ejectment. (Thacker v. Henderson, 63 Barb. 271.)

The guardian having entire control of their property, the infants in this case were not in a position to either remove the wall in question or to repair and maintain it in a safe condition.

Again, negligence is actual or implied. There can be no actual or personal negligence charged on the part, of the infant defendants, because they had no legal or actual control over the property in question. The negligence of their guardian cannot be implied or imputed to them as in the case where the principal is held responsible for the acts of an agent or the employer for the negligence of his employees; that proceeds upon the theory that the superior is responsible for the action of the inferior.

In the case of guardian and ward, the superior authority is that of the guardian, and the negligence of the guardian is the negligence of the superior, and the negligence of the superior cannot be implied or attributed to the inferior. The ward does not direct or control the guardian, but the guardian the ward. In the absence of any finding of actual or personal negligence on the part of the infants, I do not think the judgment of negligence can be sustained against them.

The case of Morain v. Devlin (132 Mass. 87) does not seem to. me entirely a parallel one. The interest of a committee of a lunatic in the property of the latter is different from that of a guardian in the estate of a ward. A committee of a lunatic is held to be a mere bailiff or agent to take care of and administer the property of the lunatic (Matter of Strasburger, 132 N. Y. 128; People ex rel. Smith v. Commissioners of Taxes, 100 id. 215), while, as we have seen, a guardian has the possession, custody and control of his ward’s land.

Judgment affirmed, with costs.  