
    David Martin, Respondent, v. Joseph A. Farrell and John F. Farrell, Appellants.
    
      Injury to a horse in a pasture from one of three other horses wrongfully turned into the pasture by their riders—each rider is liable.
    
    Where three persons returning from a horseback ride open a gate leading to a vacant lot, in which is a horse belonging to another party, and wrongfully turn the three horses into such lot, and during the night one of the horses kicks the horse of such other party, which was being pastured in the lot, each person who participated in turning the three horses into the lot is liable as a joint tort feasor for the injury done to such horse, and this liability does not depend upon the ownership of the horses or upon whether they were known to be vicious.
    Appeal by the defendants, Joseph A. Farrell and another, from a judgment of the County,Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of April, 1901, affirming upon an appeal a judgment of the City Court of Albany in favor of the plaintiff.
    
      Neile F. Towner, for the appellants.
    
      Robert H. McCormic, Jr., for the respondent.
   Chase, J.:

The defendants and two other persons took a horseback ride in the evening of August 16, 1900, and returned to the residence of the defendants’ father in Albany about eleven o’clock. Adjoining the residence of the defendants’ father were vacant lots inclosed by a fence, in which lots a horse belonging to the plaintiff was pasturing. The stableman of the defendants’ father not being present, ,one of the party took his horse away, and the three remaining horses were left in the public street or turned into the field with the plaintiff’s horse. The three horses were heard in the lots with the plaintiff’s horse during the night, and they were seen there during the early part of the following .day. One of the three horses Was seen to kick at the forward part of the plaintiff’s horse and the plaintiff’s horse started away limping on the left foreleg. Subsequently the plaintiff found his horse in the lot with an injury on the left foreleg. . The lock securing the gate, to said lots had been tampered with and the staple holding the lock had been pulled out and driven in again. This action is brought against the defendants for damagés to the plaintiff’s horse. It is an action for a wrong. The wrong consists in putting the horses into the field where plaintiff’s horse was rightfully pasturing. It was a single wrongful act, although several were concerned therein. This case does not depend upon the ownership of the horses, nor as to whether they were known to be vicious. The rule that each person is liable only for damages done by his own animal does not apply. If the injury to the plaintiff’s horse was one fairly to have been anticipated from the wrongful act, of turning the three horses into the lots, then all persons participating in the wrong were joint wrongdoers. In such an action recovery may be had against one or all of the participants. (Usher v. Van Vranken, 48 App. Dfv. 413.) The important question of fact herein, is whether the defendants and each of them personally, or by directions to others, pulled the staple of the lock and turned the horses into the lots. One of the witnesses, referring to the defendant Joseph A. Farrell, testified : “ Q. What did you tell hini ? A. I asked him, did he put some horses in the pasture lot adjoining his house where he lived with his father, and he said yes he had. I was out, he said, on horseback with some other-parties, and we came home late and the stable was closed, and we couldn’t put the horses in, so we put them in there for the night * * . I think Martin’s horse got hurt. I heard the horses having a lively time that night in the pasture lot.”

Another witness, referring to a conversation with Joseph A. Farrell, testified: “In the course of the conversation he told me that he and his brother, John Farrell, and another person had been out riding and had returned home quite latent night, too late to put the horse in the stable, and that they had removed the lock; they didn’t stop to go in and get the key, and had put the three horses which they used into the lot; that during the night he heard a great racket out in the field.”

The denials of the defendant Joseph A. Farrell are not sufficiently explicit to overcome the effect of the testimony quoted, and the judgment as against him should stand. The evidence is not sufficient to justify the conclusion that the defendant John F. Farrell either pulled the staple of the lock on the gate or took part in turning the horses into the lots. Judgments of the County Court and City Court of Albany as against the defendant John F. Farrell reversed, and as against the defendant Joseph A. Farrell affirmed, without costs in this court. A new trial granted in the City Court of Albany as against the defendant John F. Farrell.

All concurred. Order to be settled by Chase, J.

Judgments of the County Court and City Court of Albany as against the defendant John F. Farrell reversed, and as against the defendant Joseph A. Farrell affirmed, without costs in this court, and new trial granted in the City Court of Albany as against the defendant John F. Farrell.  