
    Mary Herrmann, Respondent, v. Emma O. Sarles, Appellant.
    
      -Action to recover damages caused by the spread of a fil'e — a declaration made by the person who started it that the defendant directed him to do so, is incompetent.
    
    -In an action brought to recover damages resulting from a Are which was negligently started on the defendant’s land and communicated.to the plaintiff’s barn,, evidence of a declaration, made after the. Are by the person who started it, concerning a direction given by the defendant about starting the Are, is incompetent to prove the fact.
    Appeal by.the defendant, Emma O. Sarles, from a judgment of "the County Court of Westchester county in favor of the plaintiff, •entered in the office of the clerk of the county of- Westchester on the 14th day of September, 1898, upon the verdict of a jury, and •also from an order entered in said clerk’s office on the 1st day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from a five "which was started on the defendant’s land and communicated to the plaintiff’s barn.
    
      William P. Fiero, for the appellant.
    
      A. J. Adams, for the respondent.
   Hatch, J. :

It is quite probable that there was sufficient evidence upon which the court was authorized to submit and the jury to find that the, fire which destroyed the barn was occasioned by the act of AndrewSarles in setting fire to the grass in the field, and that in so setting the fire he was guilty of a negligent act. For the purposes of this, appeal we may so assume. But the evidence falls short of establish-., ing that the defendant was responsible therefor. The only competent evidence in the case to establish that Andrew Sarles was the, servant of the defendant was that he did work about the place gen-, erally, as was required to be done upon the farm. But both the, defendant and Sarles testified that Andrew did the work upon the., farm for himself as tenant of the defendant, and, in corroboration of this fact, a written agreement was produced, executed by both, which established the relation of landlord arid tenant, the term of ; which tenancy had begun and was in existence at the time of the* fire. There is no evidence contradicting the existence of such relation. The fact that he worked about the place is entirely consistent therewith. In order to meet the obligations which the agreement imposed, he was required to perform the labor which the evidence shows he did perform. There is a suggestion that the agreement was executed to meet the necessities of this lawsuit, but noth-, ing supports such suggestion. It was not shown that Andrew-obeyed the defendant’s directions connected with the carrying on of-the farm or that he was directed by her to do what he did do, or. that the relation of master and servant had at any time existed. He had been there about a year, but in what capacity prior to the. execution of the agreement does not appear, nor does it appear that, the defendant controlled him in what he did prior to the agreement, or after. So far, therefore, as is disclosed by the record, the defendant had no control over Andrew’s actions. The suggestion is mere, speculation and cannot be made the basis upon which to found liability. (Bond v. Smith, 113 N. Y. 378.) There was an attempt, made to supply this defect in the proof by giving in evidence the. declaration of Andrew as to a direction given by the defendant about starting the fire; but such declaration was made after the event had happened, and was not competent to prove the fact, (First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Manhattan Life Ins. Co. v. F. S. S. & G. S. F. R. R. Co., 139 id. 146.)

As the proof stood, no liability was shown for the act of starting the fire which rested upon the defendant; hence, it became the duty of the court to dismiss the complaint. The questions were raised by a proper motion, and also by objections to the testimony when offered, and exceptions to the ruling admitting it.

The judgment should be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  