
    Dennis Callahan, Resp’t, v. William L. Matthews et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Husband and wife — Liability.
    In an action against husband and wife for injuries from an excavation in front of certain premises, her answer, which admits that she owned the premises, but denies that she occupied and had control of them and alleges that her husband occupied and had control of them for the purpose of ending a building thereon for her, will be, in the absence of evidence that he was erecting the building as an independent contractor, construed as an admission that he was acting as her agent.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, and on the ground of newly discovered evidence.
    
      George E. Milliman, for app’lts ; Henry J. Sullivan, for resp’t.
   Bradley, J.

— On the night of October 4, 1893, the plaintiff, while passing along the west side of Prospect street, in the city of Rochester, fell into a trench excavated across the sidewalk for the purpose of a lateral sewer to the premises and buildings owned by the defendant Kellie P. Matthews, there situated. The night was dark, and on the part of the plaintiff evidence was given tending to prove that there was no barricade there, and no light to guard against the danger to which persons were thus exposed, or to warn them of its existence. There was, however, a conflict in the evidence upon that subject. This question, as well as that of contributory negligence of the plaintiff, and as to the nature and extent of his injury, were, upon the evidence, questions of fact properly submitted to the jury. It is with some force urged on her part that the evidence did not warrant the recovery against the defendant Kellie P. Matthews. The defendants were husband and wife. The latter, by her answer, admitted that she was the owner of the premises and buildings adjacent to the street where the excavation was made, but denied that she occupied and had control of them, and alleged that the defendant William L. Matthews occupied and controlled the premises for the purposes of erecting a building thereon for her. As the only evidence that she owned the premises is in such admission in the answer, it must be taken in connection with the other allegations in the same paragraph, and subject to the qualifications there given to it, for the purposes of the question arising upon the charge of negligence as against her. Gildersleeve v. Landon, 73 N. Y. 609. The work of making the excavation and of the erection of the building on the premises, it may be assumed, was done under the immediate direction of the husband. By what relation to his wife he was doing the work does not appear by evidence of witnesses. But, nothing appearing to the contrary, it might be presumed that in the performance of it he was engaged as her agent in the service. And in view of the fact that the wife owned the property, and as the improvements were of a permanent nature to the freehold, the allegation in her answer that the husband occupied and controlled the premises for the purpose mentioned does not necessarily import that he was not engaged as her agent in performing the work. She alleged that he occupied and controlled the premises for the purpose of erecting a building thereon for her. The important fact is other than that of occupation and control of the premises, and is in what relation to her he was engaged in the performance of the work which produced the dangerous condition. This is not within the expression or fair meaning of the allegations referred, to. And the general rule is that a pleading will not be extended by construction in behalf of the pleader beyond what is the reasonable import of its language. The defendants were at liberty to prove that the work was done by the defendant William L. Matthews as an independent contractor for the other defendant; and such fact, if established, would have constituted a defense for her. Blake v. Ferris, 5 N. Y. 48. But no evidence to that effect was introduced on the defense. And the fact that the defendants were husband and wife does not tend to support the proposition that his relation in the performance of this work on the premises of his wife was other than that of agent or servant. While the burden was with the plaintiff to prove every fact essential to the liability of the defendants, the presumption arising out of the relation of Mrs. Matthews to the premises as owner is available as evidence in support of the action against her. The jury were, by the evidence, permitted to find the verdict against both of the defendants. After a careful examination of the evidence given on the trial, and of the affidavits upon which the motion for a new trial on the ground of newly-discovered evidence was heard, no occasion appears for overruling the conclusion of the trial judge on the motion.

The judgment and order should be affirmed.

All concur.  