
    (69 Hun, 593.)
    GUILFOOS v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fifth Department.
    June 23, 1893.)
    1. Covenants Running with the Land — Agreement to Maintain Fence.
    A paroi agreement to maintain a fence does not run with the land.
    2. Railroad Companies — Injuring Animals — Barbed-Wire Fence.
    In an action against a railroad company, commenced prior to the passage of Laws 1891, c. 367, for injuries to a mare caused by a barbed-wire fence, it could not be said as a matter of law that it was negligence for the company to maintain such a fence, in the absence of evidence of the nature of the land inclosed.
    Appeal from Cayuga county court.
    Action by Jacob Guilfoos against the New York Central & Hudson River Railroad Company for injuries to plaintiff’s mare. From a judgment of the county court affirming a judgment of a justice’s court for plaintiff, defendant appeals.
    Reversed.
    Argued before DWIGHT, P. J., and MACOMBER, LEWIS, and HAIGHT, JJ.
    J. W. Dunwell, for appellant.
    James Wright, for respondent.
   HAIGHT, J.

This action was brought to recover damages for injuries received by the plaintiff’s mare in a barbed-wire fence. The plaintiff, in his complaint, alleges that he is the owner of a farm adjoining the defendant’s railroad; “that along the lands of plaintiff said defendant constructed and put up a barbed-wire fence, and has continued to maintain the same until the grievance hereinafter alleged; that such barbed-wire fence was put up and maintained against the express wish and consent of plaintiff, and contrary to a contract made by and between said West Shore Company and plaintiff at the time of going through the lands of plaintiff; that about January 1st plaintiff had a certain mare in a pasture lot adjoining said West Shore Railroad; and she became entangled in said barbed-wire fence above described, and cut, maimed, mutilated, and otherwise injured herself to the extent of forty dollars, and for medicine used to heal her ten dollars, including doctoring; wherefore, by reason of the premises, plaintiff demands judgment against said defendant for the sum of fifty dollars.” Upon the trial evidence was given tending to show that at the time the West Shore contemplated building its road a man came there to buy the right of way through the farm in question, and said that he would pay $200 per acre for the land, and would build a board fence, and dig a ditch two feet deep and four feet wide. The plaintiff was not at this time the owner of the land, but he subsequently became the owner. We do not understand that a paroi promise to maintain a fence is an agreement that runs with the land. See Pierce, R. R. 424, and authorities there cited. It consequently does not become necessary to consider the evidence for the purpose of determining whether it is sufficient to sustain the alleged agreement to build a board fence, or the exceptions that have been taken to the admission of evidence upon the trial in an attempt to establish such an agreement. The county court, in its review, was of the opinion that the action could, be maintained as one for negligence, and we have examined the case for the purpose of determining whether such a cause of action was established. The complaint, as we have seen, fails to allege any act of negligence on the part of the defendant. The only allegation bearing upon the question is “that the defendant constructed and put up a barbed-wire fence, and has continued to maintain the same until the grievance hereinafter alleged.” It does not allege that such fence was dangerous. Unless, therefore, the court can say that a barbed-wire fence is dangerous, and a nuisance per se, the action cannot be maintained on the ground of negligence. But, assuming that the complaint is sufficient to authorize a recovery upon that ground, there is an absolute failure of evidence to establish negligence. The only evidence given upon the subject is by the plaintiff himself,. and is as follows:

“The fence is a barbed-wire fence on the south and north side of the West Shore Railroad. The fence where the mare was hurt is on the north side of the railroad. There are six or seven acres in the field, and the barbed-wire fence is along the railroad. It is the same fence that the West Shore Company put up, and has been there until now. It has six wires on wooden posts, with barbs about six inches apart, and sharp, and barbs are about half an' inch long.’’

In another place he testified that he put his horse in the field in June, 1889, to pasture. The nature of the lot, whether wild or cultivated, pasture or meadow, does not appear. Whether it had ever been used as a pasture before, or the defendant knew of such use, does not appear. We are not even informed as to how the mare came to be injured. We do not understand that a barbed-wire fence along a railroad track is necessarily dangerous, and a nuisance. It may or it may not be, depending upon circumstances. If the lands which it inclosed were wild and uncultivated, and not used for the pasturing of horses, it could hardly be claimed that its construction and maintenance was negligence; and yet other circumstances might be disclosed showing that such a fence was an improper one. Rehler v. Railroad Co., (Sup.) 8 N. Y. Supp. 286. Under the evidence as we find it, it does not appear that such a cause of action was established. It is very evident that the case was not tried upon this theory. The claim litigated was for a breach of contract, and it is hardly fair to the appellant upon review to permit the respondent to shift his claim of damages from a breach of contract to one for negligence. The injury complained of occurred before the passage of chapter 367, Laws 1891, and consequently the prohibition of barbed-wire fences in that act has no application to this case. . The judgment of the county court and that of the justice of the peace should be reversed, with costs to the respondent in this and the county court. All concur.  