
    Gilbert and another v. Beach.
    Upon the trial there was a disputed question of fact; the iudge submitted certain questions to the jury, who answered them specially and found a verdict for the plaintiff, assessing his damages, subject to the opinion of the court upon a case to be made, with liberty to turn it into-a bill of exceptions. The case was heard at general term, and judgment rendered for the defendant; Held, a mistrial, the judgment reversed and a new trial ordered.
    Appeal from the Superior Court of New-York city. The action was brought by the plaintiffs, tenants of a store on Cortland-street, in the city of New-York, for injuries sus» tained by the flooding of their store with water. On the trial, before Mr. Justice Düer and a jury, it was proved that the defendant was building a store on a lot adjoining that of the plaintiffs, under special contracts, none of which were completed, and a gutter or spout was attached to the unfinished roof, by persons employed in its construction, in such a manner as, during a severe rain storm, to turn a great quantity of water into an area between the buildings, whence it flowed into the cellar of the plaintiffs’ store, and damaged goods stored therein. Peter Young, who was the contractor for doing the carpenter’s work of the defendant’s building, was a witness for the plaintiffs, and gave evidence tending to prove that he arranged the wáter-spout or leader, in the particular manner in which it was at the time of the storm, by the direction of the defendant himself. There was some evidence that the water from1 the leader, at the commencement of the storm, was running off upon the roof of a building adjoining that of the plaintiffs, and that it was diverted into the plaintiffs’ cellar by means of planks arranged for that purpose by;the workmen of the contractors who were constructing the defendant’s building. The judge charged the jury that the servants of the contractors were the agents of the defendant, and the latter was liable for their acts of commission or omission which produced pecuniary injury to the plaintiffs, and the defendant’s counsel excepted. As to the other questions in the case, he submitted them to the jury in three interrogatories, which they answered specially. A verdict was found for the plaintiffs for $225 damages, subject to the opinion of the court, on a case to be made, with liberty to turn it into a bill of exceptions. The court, upon the argument of the case at general term, dismissed the complaint, and the plaintiffs appealed to this ¿ourt.
    
      E. W. Chester, for the appellants.
    
      John E. Parsons, for the respondent.
   Pratt, J.

It is difficult to determine what questions were designed to be brought up from the circuit to the general term for review. It was not the case of a verdict for the plaintiffs, taken subject to the opinion of the court at general term, under section two hundred and sixty-five of the Code, for that manifestly refers to the case of a general verdict. This seems to have been-, in part, at least, a special verdict, which, by the same section, must be heard in the first instance at a special term, if a motion be made for judgment thereon. It was not a case for ordering a general verdict, subject to the opinion of the court at general term, upon the trial the case did not “ present only questions of law.” At least, the question whether the owner could be held responsible for damages occasioned by the unauthorized act of a builder or contractor could not arise in the case until the question of fact whether the act was or was n<& authorized by the owner should be first disposed of an& settled. If it be assumed that the spout was placed in thS condition in which iiTwas found at the time of the coming on of the storm by the direction of the defendant, there could be no question in relation to his liability. The contrary clearly could not be assumed, for the witness Young testified that the defendant ordered him to do it, and he did it. If, therefore, the damages resulted from an act done by the express direction of the defendant, the question upon which the cause was decided at general term did not arise in the case. It could not, therefore, except by taking this testi-1 mony of Young to be true, be assumed that questions of law-only were involved in the case. And in that case the question of law would be a very simple one, and 'one which, if correctly decided, would have produced a very different result at general term.

Were it not for the statement of facts sent up with the case, I should have thought that it was not the design of the-learned judge to order a verdict subject to the opinion of tb» court. He ruled generally that the defendant was liable for the acts of the contractors; that they were, so far as liability for their acts was concerned, to be deemed his agents. Liberty was reserved to either party to turn the case into a bill of exceptions. All this was inconsistent with the idea that it was to be deemed a general verdict, subject to the opinion of the court. No ruling in that case would have been necessary; and under the law there is no necessity, indeed it is impracticable, to turn the case, where a verdict is thus taken, into a bill of exceptions.

I should have thought it more probable that it did not occur to the learned judge who tried the cause that a motion for new trial upon a case, by the amendments of 1852, could not be heard in the first instance at the general term, and that it was simply intended to stay proceedings for the purpose of enabling the defendant to move for a new Mai at the general term upon a case, according to the practice previous to the amendment of 1852.

But the proceedings at general tern, in which the learned judge seems to have taken part, are based upon the assumption that it was a verdict subject to the opinion of the court, otherwise final judgment could not have been given for the defendant. We are, therefore, bound to treat it as such, and, it being very clearly not a case for such practice, we must hold it a mistrial.

The judgment must, therefore, be reversed, and a new trial ordered.

All the judges concurring,

Judgment reversed and new trial ordered.  