
    James Roney, App’lt, v. Bruce S. Aldrich, Resp’t, Impl’d with Cuyler E. Baldwin.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887.)
    
    1. New trial—Payment of costs usually imposed on party obtaining WHEN GRANTED ON THE GROUND THAT VERDICT IS AGAINST THE WEIGHT OF EVIDENCE.
    Where a new trial is granted for an error of the jury in rendering a verdict contrary to the evidence, the payment of costs is usually imposed upon the party to whom it is granted.
    2. Same—When record does not disclose grounds of order, appellate COURT WILL PRESUME THIS PRACTICE HAS BEEN FOLLOWED.
    Where the record does not show that the motion was granted for errors of the jury an appellate court will presume that this rule of practice has been observed, and that the order was made upon exceptions taken.
    3. Division fence—Obligation to maintain division fence—7 R. S., 831.
    The owner of a farm is, by 1 R. S., 353, § 30, as amended in 1871 and 1872, 1 R. S., 831, required to build and maintain a just and equal proportion of the division fence between his premises and those of an adjoining owner
    4. Same—Owner liable for damages resulting from negligence of AGENT IN CONSTRUCTING.
    Where a division fence was built by one who occupied premises as agent of the owner, and who, in that particular, also acted as such. Held, that the owner was liable for damages arising through negligence in the construction of the fence.
    In 1883 and in 1884, the plaintiff occupied a farm owned by one Kelley, which adjoined on the south a farm owned in 1884 by Aldrich, and occupied in 1884 by Baldwin. By an agreement between the proprietors, the owner of the Kelley farm was bound to build and maintain the part of the division fence west of a certain chestnut post; and the owner of the Aldrich farm was bound to build and maintain the part of the division fence east of said chestnut post. In 1883 the plaintiff, with the approval of Kelley, built a galvanized barbed wire division fence from said chestnut post to the west end of the boundary line; and in June, 1884, a japanned barbed wire (Glidden’s patent) fence was built from said chestnut post to the east end of the boundary line by defendant Baldwin, under circumstances which will be more fully stated hereafter. While the plaintiff’s horses were at pasture they were, during the night of June 19, 1884, badly cut by a wire fence, and this action was brought to recover the damages. A verdict was rendered against both defendants for $133.50 damages. Upon a case containing all of the evidence, Aldrich alone moved for a new trial, which was granted as to him, with costs to abide the event. A judgment has not been entered. The plaintiff appeals from the order granting a new trial.
    
      Franklin Pierce, for pl’ff-app’lt; T. E. Hancock, for def’t-resp’t.
   Follett, J.

The order not disclosing the grounds upon which it was granted, and no opinion having been written, the grounds of the decision must be searched for on the record. At the close of the evidence, Aldrich alone moved for a nonsuit, because a cause of action had not been proved against him, which was denied, and an exception taken. At the close of the charge he excepted to the direction that a verdict might be rendered against him. We think the new trial was granted on these exceptions, for two reasons : (1) No other exceptions were taken upon the trial, except to unimportant and not debatable rulings upon the reception and rejection of evidence, which rulings were all common to both defendants; (2) The payment of costs by Aldrich was not required, which is the usual condition imposed when a new trial is granted for an error of the jury in rendering a verdict contrary to the-evidence. Bailey v. Park, 5 Hun, 41; Kelly v. Frazier, 27 id., 314; S. C., 2 Civ. Pro. Rep., 322. The record not disclosing that the motion was granted for errors of the jury, this court will presume that the court below followed this rule of practice, and granted the motion upon the exceptions. Henderson v. Henderson, 2 Abb; N. C., 102.

The verdict must be regarded as settling in plaintiff’s favor the three important questions of fact: (1) That defendant’s fence was negligently built; (2) That plaintiff’s horses were injured thereby; (3) That plaintiff did not, by negligent acts, contribute to their injury. This brings us to the question of whether Aldrich is liable for the damages caused to plaintiff by the negligent construction of this fence. Otherwise stated, was the evidence insufficient, as a question of law, to render him liable; or was there sufficient evidence to make the question of liability one of fact for the jury?

Aldrich owned the farm, and as such owner was required by statute to build and maintain a just and equal proportion of the division fence. 1 R. S., 353, § 30, as amended in 1871 and 1872; 1 R. S. (7th ed.), 831. He concedes that the owner of his farm was to build the part of the division fence extending east from the chestnut post (where the jury found the accident occurred), and it is proved that such had been the practice for many years. Ditchett v. S. D. and P. M. R. R. Co. (67 N. Y., 425), does not hold that the occupant, and not the owner, is charged by the above statute with the duty of building and maintaining division fences as between adjoining owners. That case did not arise under this statute, or between adjoining owners, or between the occupants of adjoining properties, but it was an action by the administratrix of a traveler on a public street, who was killed by falling from the street into an excavation which had been, previously guarded by a fence, but then out of repair.'

At common Taw, adjoining owners were not bound, as between each other, to maintain division fences, unless the right to compel their maintenance had been acquired by prescription or by agreement; and the cases which arose before the statute need not be considered.

The cases deciding whether a master is liable for the negligence of his servant, or a landlord for injuries sustained by third persons on leased premises, or whether the owner of land is liable for the negligence of a person who has contracted to do some act thereon, are instructive, but not directly in point; because none of these relations existed between Aldrich and Baldwin. So similar are many of the border duties of special agents and servants that it has been found impossible to draw a liné clearly separating one from the other; and though this is a border case, we are of the opinion that Baldwin must be held to have been the representative and agent of Aldrich in building the fence. Baldwin was not directed to use posts of any particular size, kind or strength; nor how far apart the posts should be set, nor how far apart, nor how high above the ground the wires should be strung, nor how they were to be secured to the posts. In these respects, which together, make up all there was to be done, he might, and did, exercise his own judgment; and in these very respects the fence was negligently constructed. Aldrich is hable for this negligence of his agent. Story’s Agency, § 452, and cases there cited. But if it be held that Baldwin was the servant of Aldrich in building the fence, the rule of respondent superior, under which principals are hable to third persons for the acts of their agents, and masters to third persons (not co-servants), for the acts of their servants, fixes the liability of Aldrich for the negligent construction of the fence. That Baldwin represented Aldrich in the capacity of agent or servant, cannot, we think, be doubted. Aldrich owned the farm; it was his duty to build the fence; he furnished the wire for it, and authorized Baldwin to build it. We have said that the relation of landlord and tenant did not exist; which, we think, cannot be seriously doubted; for it does not appear that Baldwin had the sole right to occupy or control this farm to the exclusion of Aldrich for any period of time; and it affirmatively appears that rent was not paid, or agreed to be paid.

These views lead to a reversal of the order, with costs.

Hardin, P. J., and Boardman, J., concurs.  