
    Jacob Ulrich v. Hugh McCabe.
    The owner of a house, injured by Hasting, has a right of action for the damage against the contractor, under whose supervision the blasting was done.
    In such a case, the fact of the accident raises a presumption that the blast was not properly covered.
    It makes no difference that the plaintiff’s house stood upon leased land; or was itself hired by him. In the latter case, he would presumptively he liable to his landlord to repair the injury, and can recover the value of the necessary repairs from the contractor. !
    In an action to recover for such an injury, it is immaterial whether or not tho tenant, under his agreement with the landlord, was bound to keep the premises in repair ; because he must either make the repairs rendered necessary by the injury, or lose the beneficial enjoyment of the property.
    Appeal by defendant from a judgment of the Seventh District Court. Tbis was an action to recover damages for injuries occasioned to tbe plaintiff’s bouse by blasting done under tbe supervision of tbe defendant. The evidence for tbe plaintiff showed that be was the owner of a bouse on tbe corner of Forty-sixth street and Tenth avenue, which stood, however, on leased ground; that the defendant was the contractor having in charge the malting of a sewer in Forty-sixth street; that at one of the blasts, some stones were thrown upon the plaintiff’s ho.use, and he was obliged to pay $20.50 to repair the injury done. The evidence of the defendant’s connection with the blasting was the testimony of a witness to his admission, that he was the contractor having it in charge.
    At the close of the plaintiff’s case, the defendant moved for a nonsuit upon the grounds: I. That the plaintiff was not the owner of the house damaged. II. That there was no evidence of damage. III. That it appeared the blast was covered as the law required. The motion was denied. The defendant offered some testimony tending to show that he was not the con-tentor for building tbe sewer. Judgment was rendered for the pl*|jitiff, and the defendant appealed.
    
      Stillwell and Swain, for the appellant.
    
      Van Antwerp and James, for the respondent.
   Beaut, J. —

The appellant bases his appeal on four several facts, none of which appear by tbe return, viz.:

1. That the plaintiff was tbe tenant of the premises injured.

2. That the amount expended in repairs was $19 only.

3. That the sum of $19 included other repairs than those rendered necessary by the damage done, and

4. That the plaintiff admitted that the blast was properly-covered.

The testimony, however, shows that the plaintiff was the owner of the house. That the amount expended in repairs was $20.50, viz.: $19 for the mason, and $1.50 for carpenter’s work, and that nothing was included but what was rendered necessary by the damage done. It does not appear, however, that the blast was properly covered, and, as I understand the return, there is no admission of that fact as alleged by the appellant. In the absence of proof on that subject, the presumption would be against sucb a proposition. If tbe blast, indeed, had been_prop- erly covered, ibe damages sustained by tbe plaintiff, probably, would not have resulted from it.

Tbe defendant admitted that be was tbe contractor, and tbe witness called for tbe defence does not disprove that fact. If his testimony created any doubt, tbe decision of tbe justice would be binding.

There is nothing in tbe case to show that tbe bouse of tbe plaintiff was a permanent structure, or part of the freehold. If it rested on tbe land without being fastened to tbe soil, or on ■stones resting on tbe surface, and not fastened to the earth, tbe plaintiff, as tenant, might have tbe right to remove it at tbe expiration of bis term. The defendant cannot excuse himself by a mere hypothesis. If he bad a defence, be should have proved it.

Tbe appellant is mistaken in supposing that tbe tenant was not bound to repair, if tbe bouse was part of the fee. There is no proof on that subject, and for that reason tbe presumption is, that be was bound to uphold tbe premises in question from decay, and to render them, when bis term expired, in such condition as reasonable use would permit. Taylor’s Landlord and Tenant, 163, and cases cited. At all events, the landlord was not bound to repair during the term, without an agreement on bis part so to do, and tbe tenant must either make the repairs, or lose tbe beneficial enjoyment of tbe premises. The latter circumstance entitles him to recover tbe expense of such repairs, whether tbe bouse was bis or not, and whether or not tbe bouse could be removed by him at tbe expiration of the term.

There is no proof, as stated before, that the defendant properly covered tbe blast, and there is no admission by tbe plaintiff that it was so covered. It is true, that when a motion for nonsuit was made, it was stated, by tbe defendant’s counsel, that there was such an admission, but it does not appear in tbe return. It is denied by tbe respondent, and tbe justice seems to have disregarded tbe statement, because, after setting forth tbe grounds •upon which tbe nonsuit was urged, and on which the statement of tbe admission is included, be adds: “all of which was oyer-ruled by me,” and by wbieb I understand bim to mean that he repudiated such statement as inconsistent with the proof, and denied the motion for nonsuit as well. The appellant, however, could have protected himself from any doubt on that subject by an amended return. He has not procured it, and must take the consequences:

The appeal presents nothing which justifies a reversal of the judgment, and it must be affirmed.  