
    John S. Marsh, App’lt, v. Walter M. Hand et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 29, 1890.)
    
    1. Animals—Owners of land leased on shares not liable for injuries BY ANIMALS KEPT THEREIN.
    Defendants Hand and one Congdon, as executors of the will of Stephen D. Hand, made an agreement with Buell Cumber by which the latter was to work a farm belonging to the estate, keeping the fences in repair and caring for the stock, each party to have one-half the produce and one-half the increase of the stock, etc. Cumber, without the knowledge of the executors, traded off a ram left with the sheep, for another, which escaped from the farm upon plaintiff’s farm adjoining and injured him. Reid, that the defendants Hand were not liable as owners of the ram for such injury.
    3. Same.
    The practical effect of the contract was that the executors should have a share of the products by way of compensation for the use of the property, and Cumber was entitled to the other share as compensation for his labor in performing the contract. Mo negligence of the latter in the performance of the work to the prejudice of third parties could charge the Hands, with liability.
    Appeal from order of the general term of the supreme court in the fourth judicial department, reversing judgment entered on verdict against the defendants and granting a new trial.
    In March, 1882, the defendants Hand and one Congdon, as executors of the will of Stephen D. Hand, deceased, entered into an agreement in writing with Buell Cumber, by which the latter agreed to occupy, for one year from the 1st day of April then next, a farm of which the testator died seized, and to work and cultivate it in proper manner, to keep the fences in good repair, and to take care of all the stock left on the farm by them, he to furnish team to do the work. Bach party to have one-half of the produce and one-half the value of the growth and increase of the stock. The team to be fed from the common product, and each party to furnish one-half the seed. The executors having the right to go on the farm, but not to damage the crops or to interfere with the work or interests of Cumber. He to sustain any loss or damage to the stock occasioned by his neglect, and any loss or damage unavoidably occurring to the stock should be equally borne by the parties to the contract. And Cumber should “ leave on the farm as large a quantity of hay and stock and as good as he found on taking possession or pay the ” other parties “the cash value of the same.” Cumber occupied the'farm under the contract and continued in occupation without any other agreement at the time when the alleged injury was suffered by the plaintiff, in April, 1884. This action was brought against Cumber and the defendants Hand to recover for personal injuries of the plaintiff suffered from the attack made upon him by a ram which with other sheep had escaped from the farm before mentioned on to the adjoining farm of the plaintiff. The recovery was had against all the defendants. The defendant Cumber did not appeal.
    
      Edmund O’ Connor, for app’lt; Wales, Hand & Fish, for respis,
    
      
       Affirming 40 Hun, 339.
    
   Bradley, J.

At the time of the injury the buck sheep which made the attack on the plaintiff was trespassing upon his premises. This was prima facie sufficient to charge the owner with liability for the damages sustained by the plaintiff. Van Leuven v. Lyke, 1 N. Y., 515. If, therefore, the defendants had title to-the animal, the recovery against them was supported unless the relation of the defendants Hand to it was so qualified by the contract between them and Cumber as to relieve them from responsibility in that respect. The liability for trespass arises out of a wrongful act or failure to perform the duty imposed upon a party so chargeable. That duty so far as relates to domestic animals is to so restrain them as to prevent their going on to the premises of another. This duty is imperative. By the contract in question the defendants Hand surrendered the entire control of the stock on the farm to Cumber, who undertook to take care of it and for the purpose of keeping it on the premises to maintain the fences. He, as well as the Hands, had an interest in the use of the stock and was liable for the injury resulting from the trespass upon the plaintiff’s premises, but inasmuch as the defendants Hand had neither parted with the title to the stock left by them upon the farm, or rented it to Cumber, they were also liable for any trespass committed by such stock upon the lands of another. The relation of Cumber as the bailee and his duties assumed in respect to it, did not have the effect to relieve them, who were the general owners, from liability. But the ram which did the injury complained of was not left upon the farm by the defendants Hand or put there by them. It was purchased by Cumber after he went into occupancy, and kept on the farm by him without their knowledge, and to obtain it he traded off one which they had left there with the sheep. There is no evidence to justify the inference that they had in any manner ratified or adopted such exchange as made in then.’ behalf, and this act of Cumber did not come within any power given by the terms of the contract. Whatever the Hands may have been permitted to do by way of asserting title to this animal, they were not required to recognize or accept it as their property. If they had been advised of the purchase or exchange and failed to make objection or to repudiate it, those defendants may have been deemed to have ratified it. The want of knowledge is in the way of implication to that effect. There was no duty resting on the defendants Hand nor did any circumstances appear by the evidence to justify the charge of notice to them or the inference of knowledge from the lapse of time after the animal was obtained. But it is urged that the relation between them and Cumber was such as to permit the conclusion of authority to make the purchase and to charge them with the title to the ram. It is true that he undertook by the contract to take charge of the stock, amongst which was a flock of sheep, and that a natural increase was contemplated in which he, in common with those defendants, had an interest; and it may be that for the purpose of better accomplishing that object he made the exchange which placed the animal in question on the farm. It is not seen how that fact had the effect to authorize him to make the purchase and divest the Hands of the title to the one and to vest in them title to the other, without their sanction or election to so treat it, unless the relation between them was in some sense that of agency. They were tenants in common of the crops raised there and of the natural increase of the stock left on the farm by the executors. This created no relation of principal and agent other than such as arose from mere bailment. Cumber had no power to purchase property and charge them with liability for the purchase price without their consent. And not having that, he could not, without their approbation, vest in them the title to property he should purchase and put on the farm. How, then, for the purpose of charging the Hands with liability for the vicious attack of this ram, could they be treated as the owners of it ? The fact that the contract provided that Cumber should keep nothing on the farm in which the other parties should not have an interest did not, "without their election to so treat this animal, have the effect .to vest title to it in them. The conclusion seems to follow that the defendants Hand were not liable as owners of the ram. It is, however, contended that the trespass and injury were the result of the negligence of Cumber and that for his negligence the defendants were liable. This proposition cannot be supported on the ground that he was their servant. Ho such relation arose from the.contract Ferguson v. Hubbell, 97 N. Y., 507.

His service in working the farm was an independent one, and not subject to the control of the other parties. It was not only contemplated that he should have the sole management of the farm, but by the contract it was expressly provided that the defendants Hand should not interfere with his work there. He was an independent contractor, in the sense that he had the right to be controlled solely by his own judgment without interference by the other parties. He was not subject to be discharged by them. Their remedy for his failure to perform what he undertook to do, was for breach of the contract and for damages as the consequence. Hor was the work a joint enterprise in the sense sought to be applied to it. The Hands were in no manner engaged with Cumber in carrying forward the work. Whilst they furnished and left the stock on the farm, and were to have a share in the products, he had the entire responsibility of carrying on the business of working it, and accounting for their share in the results. He was the contractor who undertook to do all this, subject only to the terms of the contract he had made with them to do it. The cases of Champion v. Bostwick, 18 Wend., 175, and Stroher v. Filing, 97 N. Y., 102, cited by the plaintiff’s counsel, do not necessarily have any application to the question in this case. In the former, the defendants, engaged in running a line of stages on routes divided between them, were held jointly liable for an injury to a passenger on one of the lines occasioned by the negligence of the driver of the stage. There all of th§ defendants were engaged in that service of carrying on the business. And in the other case the defendant was engaged with another in the business of carrying passengers, pursuant to contract between them that the defendant would furnish the team and means, and the other render the necessary services to carry on the business. By the negligence of the latter while engaged in the service the plaintiff was injured. The defendant was held liable, on the ground that those parties to the arrangement were engaged together in the business to which both contributed, and that as to third persons each was the agent of the other in the common enterprise.

The doctrine of that case cannot be applied to the present one. There the defendant furnished the team and equipments, and took care of them, and the other party gathered the passengers and collected the fares. Thus they both participated in the service from which the fund to be divided was derived. Here Cumber by the contract undertook to occupy and work the farm and manage the stock left there in his own way with a view to results, and without any contribution of the defendants Hand to the service, with the performance of which they had nothing to do. The practical effect of the contract was that the executors should have a share of the products by way of compensation for the use of the property, and that Cumber was entitled to the other share as compensation for his labor in performing the contract. Ho negligence of the latter in the performance of the work to the prejudice of third parties could charge the Hands with liability. Walker v. Fitts, 24 Pick., 191.

The exception to the charge that they were liable for the negligence of Cumber, therefore, was well taken. And the trial court should have, as requested, charged the jury that those defendants were liable for nominal damages only.

The order should be affirmed, and judgment absolute directed against the plaintiff.

All concur, except Follett, Ch. J., not sitting.  