
    H. L. JUDD & CO. v. CUSHING.
    
      N. Y. Supreme Court, First Department, General Term;
    
      November, 1888.
    
    1. Evidence ; documentary.] A memorandum made by a party, which detailed the history of the transactions entered in his account, and testified by him to have been intended to form part of the account —Held, not rendered admissible in his favor, by the fact that his account had been put in evidence against him.
    2. Pleading; landlord and tenant; denial of knowledge, eto., as to tenancy.] An answer which admits defendant’s ownership of premises, but denies any knowledge or information sufficient to form a belief as to whether, at the time of an accident, the plaintiff was a tenant in the building—Held, not a denial that he had tenants there, because consistent with the idea that the letting had been done by an agent and the landlord bad no knowledge upon the subject.
    3. Principal and agent; agent’s possession of premises when to be deemed landlord’s.] Where the transactions showed that an accounting was expected by an owner of premises from one in possession, and that the accounting was rendered to the owner, for the moneys realized by the letting, less the expenses and the sums agreed to be paid to the partv in possession for his services—Held, that such person in possession was to be deemed the agent of the owner, and the possession that of the owner.
    4. Evidence; relation of landlord and tenant; imputing neglAgenae.\ The relation of landlord and a tenant of a portion of his building is such that the unexplained fall of the building while the landlord is making repairs, raises a presumption of negligence on the part of the landlord, and renders him liable for the damages sustained by the tenant thereby, in the absence of proof as” to the cause of the fall.
    
    
      5. Landlord and tenant; degree of ca/re due in repairing.] A landlord; making repairs in a building which affected the supports and foundation, Sold, bound to use the greatest degree of care.
    6. Same; duty of landlord when making repairs.] If a landlord in making repairs interferes with the supports of an occupied building, he is liable for the damages caused to the tenant.
    7. Fire; liability of adjoining owner for loss caused by fire commencing-in his premises.] It seems that under the rule in Ryan ®. N. Y. Central R. R. Co., 85 N. T. 210, if a house takes fire, in consequence of its falling by reason of the negligence of the owner or' his servants, and the flames extend to and destroy another building, the owner of property in the latter cannot recover for the" damage thereto, if the two buildings were separate and-distinct.
    
    8. Same.] The landlord of the fallen building is liable, however, for' the losses by fire sustained by a tenant in the building which fell,, and in which the fire originated.
    Appeal from a judgment entered on the report of a-referee.
    The H. L. Judd & Company, a domestic corporation, suedi Nathan Cushing to recover damages alleged to have been caused by the negligence of the defendant in making repairs-in a building owned by the defendant, whereby the building fell and set fire to the plaintiffs’ property.
    The issues were referred to a referee who found, among other findings, that the defendant, Nathan Cushing, held the-legal title to the premises not in his own interest but as-security for debts held by him as executor; that he was not at the time of the repairs in the actual possession or control of the premises; that the premises were at that time in the actual possession and control of one George L. Abbott as ¡tenant at will of the defendant; that the repairs were not made by the defendant, but were made by Abbott; that Abbott did not repair unskillfully or negligently, but exercised all the care in the repairs and in the employment of skilled workmen that a man of ordinary prudence and judgment would have taken; that the defendant was not guilty of negligence; nor was Abbott guilty of negligence.
    It also appeared in evidence before the referee that other connected buildings, beside the one that fell, or, as plaintiff claimed, wings or divisions of the same building, were destroyed by fire which broke out in the building that fell upon its fall and extended to the adjoining buildings or division, one of which was also partly occupied by the plaintiff, and for which loss by fire a recovery was also sought in this action.
    On this point the referee found that the building that fell was separate and distinct from the other buildings which were destroyed by the fire, and had its separate and distinct walls of brick and stone.
    In the course of the testimony, after plaintiff had rested defendant was called as a witness, and testified on his own behalf. On cross-examination he produced books of account kept by his agent, Abbott, and these were put in evidence by the plaintiff.
    On redirect examination he produced what he testified was “ a written statement in regard to these transactions with the Houghtons, which was to form a part of that account, and which he placed with that account.”
    It was entitled “ Partial history, of transactions with S. M. & A. Houghton.” The “ history ” closed with the following statement: “ These pages are written in order that those who [sió] may understand, in case of my death or other disability have the final closing of the account of S. M. & A. Houghton as debtors to the estate of the late H. P. Cushing.” [Signature.]
    
    
      There was no other evidence as to the time when this history was written.
    
      The referee dismissed the complaint and rendered the following opinion :
    “ The relations of the defendant to the property in question were peculiar. Originally he held a mortgage upon the property as executor of an estate. Upon foreclosure, he bought in the property and took title in his own name. The title to the property had stood in the name of a Mrs. Houghton. When the defendant purchased it he made a verbal arrangement with Mr. Houghton that he, Houghton, should continue in charge of the property, collect the rents and profits, see to the care of the premises, retain for his own use a certain portion of the proceeds and account to the defendant for any balance. Mr. Houghton was, also, when the payments made by him amounted to the claims held by the defendant against the property, to have the right to have a reconveyance of the property. The property was thus managed during Houghton’s life. At his death, the Houghton family suggested that George L. Abbott should take the deceased Houghton’s place, and to this the defendant assented. Abbott took control of the premises, assumed the entire management of them, made leases, collected rents, made repairs, and after deducting all expenses and a certain sum agreed upon for the support of the Houghton family, paid over the balance to the defendant. The defendant’s liability for anything occurring upon these premises must depend upon his actual relation to them. Wfiether he has stated and held himself out to be the owner is not material, for there is no element of estoppel in this case. It does not appear that the plaintiffs were in any way influenced by any acts or representations of the defendant. The defendant himself did no direct act on the premises. His liability, if any, must depend upon the acts of others. Such liability ordinarily arises where the principal exercises his right of ' selection of an agent, and has and exercises control over him. Such does not appear to me to be the relations between Abbott and the defendant. It seems to me to be established from the testimony, the acts of the parties and the correspondence, that the arrangement between the parties was, that Houghton and Abbott were-to have possession and control of the property and to pay the defendant the net amount remaining after paying-expenses and a fixed sum for the support of the Houghton family. Under such circumstances, the defendant could not-be liable for negligent acts of Abbott, committed upon said premises. But, if we assume that the defendant is liable for any acts committed upon these premises from which damage results, such liability must, in this action at least, rest upon negligence, for even if the defendant is guilty of a breach of the covenant of quiet enjoyment contained in the leases, in an action for such breach he could not be held liable for damage to and destruction of property, which is the action brought in this case. This action, if sustained, must be so upon the negligence of the defendant or of his agents, or some of them. The defendant himself had nothing to do with the repairs on these premises, and did not even know they were going on. The question then arises, Was Abbott negligent? There was no positive act done by Abbott upon which negligence could be predicated. It is not questioned that he employed competent men in every branch of the work, men who had the reputation of knowing, and who did thoroughly understand, the business in which they were engaged. The work itself, although of importance,—of great importance as shown by the result,—was in itself of a simple description. It was not negligence in Abbott not to employ a competent engineer or architect to superintend this work. Had such a person been employed it is impossible to suggest how anything different could have been done, unless we presume that the person so employed had more special knowledge of each branch of the work than the men employed, to do the same. I cannot see. where negligence is established in this case, and if it is to be presumed from the mere fall of the building, I think, upon the whole, evidence under such presumption is overcome. It is difficult, if not impossible, to tell with accuracy how the accident in this case happened. I do not think it happened from the crushing of the masonry, but-I think it started from some one of the upper floors and arose from their being out of level. This was not discovered by Abbott or Miller, but it does not appear to me that their failure to discover this can be attributed to them as negligence. It appears to me that the present is one of those accidents which sometimes happen which could not have been prevented by the use of that care and foresight which all men are bound to use in the conduct of their affairs.”
    From the judgment entered upon the referee’s report the plaintiff appealed to the general term.
    
      John ~E. Parsons (Richards do Heald, attorneys) for the appellant.
    I. The relation "of the defendant to the property was that of owner and landlord of the plaintiff. Abbott was the defendant’s agent. The referee was in error in holding that Abbott was a tenant at will. The referee’s error upon this branch of the case was fundamental. If the plaintiff is correct, he is entitled to a new trial, in order that the other questions may be determined upon a correct view of the responsibility of the defendant. Upon the view which was taken by the referee all other questions became immaterial.
    II. None of the characteristics of a tenancy were present in this case. There was no lease ; there was no return agreed upon as rent. There was no right of possession in Abbott for a definite or ascertainable term to the exclusion of the owner. The relation was purely that of" agency. The essential elements of an agency are that the profits and the loss are with the principal, and the fixed return for the-labor or service with the agent (Reckhow v. Schanck, 43 N. Y. 448; King v. Lawson, 98 Mass. 309; Palmer v. Bowker, 106 Id. 317; Holbrook v. Young, 108 Id. 83; Say v. Stoddard, 27 Ohio, 478 ; Dingley v. Buffum, 57 Maine, 381; Ball v. Cullimore, 2 Crompt. M. & R. 120 ; James v. Dean, 11 Ves. Jr. 383, 391; Rising v. Stannard, 17 Mass. 282 ; Robie v. Smith, 21 Me. 114 ; Hoyes v. Pollock, L. R. 32 Ch. D. 53).
    III. The relation of Abbott- to the property was not that of a mortgagor in possession (Suydam v. Barber, 18 N. Y. 470-71).
    IV. The defendant was in legal possession of the property. By his agent, Abbott, he was in actual possession. It was tenement property occupied under many holdings. As to all the premises the defendant reserved the right and duty to make general alterations and repairs.
    V. The defendant was responsible for the acts and omissions of Abbott, as his agent. Eor the matter of that he was responsible for the acts and omissions of the carpenter, and of the mason who built the piers, and of the house-mover, who shored up the girder, so far as any instrumentality on their part may be claimed to have contributed to the fall (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23, 27; Wright v. Wilcox, 19 Wend. 343 ; Dervin v. Herman, 13 N. Y. State Rep. 261 [January, 1888]).
    VI. If it were necessary for the plaintiff affirmatively to prove that the injury was due to the negligence of the defendant’s agents, the evidence on both sides demonstrated that it was so (Butler v. Cushing, 46 Hun, 521; Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 297 ; Worster v. 42d R. R., 50 Id. 203 ; Wiedmer v. N. Y. Elevated, 41 Hun, 284; Bryne v. Boadle, 33 L. J. Exch. 13 ; Scott v. London Dock Co., 34 Id. 220 ; Kearney v. London, Brighton, etc. R. R. Co., L. R. 5 Q. B. 411, and 6 Id. 759 ; Mullen v. St. John, 57 N. Y. 567; Clare v. Nat. City Bank, 1 Sweeny, 539; R. R. Co. v. Walrath, 38 Ohio St. 461; Giles v. Diamond State Iron Company, 6 Cent. Rep. 867 [Delaware, 1886] ; Seybolt v. R. R. Co., 95 N. Y. 562, 568 ; Francis v. Cockrell, L. R. 5 Q. B. 184; Webber v. 
      Herkimer R. R. Co., 109 N. Y. 311 ; Phila., etc. R. R. Co., v. Anderson, 94 Penn. St. 351; Searles v. Manhattan R. R., 101 N. Y. 661; McNaier v. Manhattan R. Co., 12 State Rep. 563 ; Althorf v. Wolfe, 22 N. Y. 355; Willy v. Mulledy, 78 Id. 310; Carroll Staten Island Railway Co., 58 Id. 126, 139; Knupfle v. Knickerbocker Ice Co., 84 Id. 488; Massoth v. D. & H. Canal Co., 64 Id. 524, 532; McGrath v. N. Y. Central, etc. R. R. Co., 63 Id. 522 ; Jetter v. N. Y. & Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458; Johnson v. Bruner, 61 Penn. St. 58 ; Dawson v. Sloan, 49 Super. Ct. [J. & S.] 304 ; Devlin v. Gallagher, 6 Daly, 494; Brennan v. Lachat, 6 N. Y. State Rep. 278; Arthur v. Homestead Fire Ins. Co., 78 N. Y. 462, 469 ; Oscanyan v. Arms Co., 103 U. S. 261, 263.)
    VII. If the fall of the building was not occasioned solely by the acts and omissions of Abbott, or of some other employee of the defendant in making repairs, it must have been due also to the contributive cause of the generally insecure condition in which the building is claimed to have been. The defendant claims that the fall of the building started from one of the upper floors, and the referee, after having said in his opinion that it was difficult, if not impos - sible, to tell with accuracy how the accident happened, went on to express the thought that it did arise from the upper floors being out of level. If this were so, it brought the defendant directly within the class of cases hereinafter cited, which established his liability (Jennings v. Van Schaick, 108 N. Y. 530; Eagle v. Swayze, 2 Id. 140; McAlpin v. Powell, 70 N. Y. 129; Toole v. Beckett, 67 Me. 544; Shipley v. Associates, 106 Mass. 194; Larue v. Hotel Co., 116 Id. 67; Butler v. Cushing, 46 Hun, 521; McAdam, Landlord and Tenant, p. 170; Shattuck v. Lamb, 65 N. Y. 499 ; Mack v. Patchin, 42 Id. 167; Poposkey v. Munkwitz, Alb. Law Jour. May 28, 1887, p. 429 ; Rosenplaenter v. Roessle, 54 N. Y. 262 ; Gardner v. Heartt, 2 Barb. 165; Hay v. Cohoes Co., 2 N. Y. 159; approved in 51 Id. 479 ; Tremain v. Cohoes Co., 2 Id. 163 ; Gourdier v. Cormack, 2 E. D. Smith, 200 ; Althorf v. Wolfe, 22 N. Y. 355 ; Storrs v. Utica, 17 Id. 108; Schile v. Brokhahus, 80 Id. 614; Cleghorn v. Taylor, 18 Dunlop, 664 ; Larmore v. Crown Point Iron Co., 101 N. Y. 391, 395 ; Swords v. Edgar, 59 Id. 28, 33 ; Edwards v. N. Y. & Harlem R. R., 98 Id. 245 ; Jarvis v. Baxter, 52 Super. Ct. [J. & S.] 109 ; Heeg v. Licht, 80 N. Y. 579 ; Anderson v. Dickie, 26 How. Pr. 105; Hole v. Sittingbourne, etc. R. R. Co., 6 Hurl. and Nor. 488 ; Muller v. McKesson, 73 N. Y. 195 ; Brooks v. Curtis, 50 Id. 639 ; Dillon v. Sixth Avenue R. R. Co., 97 Id. 627; Edwards v. N. Y. & H. R. R. Co., 98 Id. 245; Ferguson v. Hubbell, 97 Id. 507; Camp v. Wood, 76 Id. 92).
    VIII. Ho question of independent contractorship arises in this case (Brazier v. Polytechnic Institution, 1 Foster and Finlason, 507; Francis v. Cockrell, Law Rep. 5 Queen’s B. 184; Edwards v. N. Y., etc. R. R. Co., 98 N. Y. 245 ; Sulzbacher v. Dickie, 6 Daly, 469 ; Storrs v. Utica, 17 N. Y. 108 ; Congreve v. Smith, 18 Id. 79 ; Congreve v. Morgan, 18 Id. 84 ; Turner v. City of Newburgh, 109 Id. 301; Ster v. Tuety, 45 Hun, 51; Bower v. Peat, L. R. 1 Q. B. D. 321; Hole v. Sittingbourne, etc. R. R. Co., 6 Hurl. and Nor. 488 ; Jarvis v. Baxter, 52 Super. Ct. [J. & S.] 109 ; Blake v. Thirst, 9, H. &. C. 20; Tarry v. Ashton, L. R. 1 Q. B. D. 314; Pickard v. Smith, 10 C. B. [N. S.] 470, 480; Dalton v. Angus, L. R. 6 App. Cas. 740 ; Gray v. Pullen, 5 B. & S. 970 ; Webber v. Herkimer R. R. Co., 109 N. Y. 311; Carroll v. Staten Island R. R. Co., 58 Id. 126, 138 ; Jetter v. N. Y. & Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458; Brown v. R. R. Co., 34 N. Y. 404, 409; Curtis v. Rochester R. R. Co., 18 Id. 534, 538; Water Co. v. Ware, 16 Wall. 566; Mayor v. Cunliff, 2 N. Y. 165 ; McCleary v. Kent, 3 Duer, 27; Hexamer v. Webb, 101 N. Y. 377; King v. N. Y. Central R. R. Co., 66 Id. 181, 184; Devlin v. Smith, 89 Id. 470 ; Keegan v. Western R. R. Co., 8 N. Y. 175, 181; Gilbert v. Beach, 16 Id. 608).
    
      IX. The referee erred in his opinion that the plaintiff was entitled to hold the defendant only to that degree of care which could be reasonably expected from Abbott with the knowledge then had by him (Steinweg v. Erie R. R. Co., 43 N. Y. 123, 126 ; Caldwell v. N. Y. Steamboat Co., 47 Id. 282; Hegeman v. Western R. R. Co., 13 Id. 9; Johnson v. Harlem River R. R. Co., 20 Id. 65; Kelsey v. Barney, 12 Id. 425; Fero v. Buffalo, etc. R. R. Co., 22 Id. 213 ; Hinds v. Barton, 25 Id. 546, 550 ; Gagg v. Vetter, 41 Ind. 228).
    X. The defendant is none the less liable that his relation to the property grew out of his executorship for his brother. At the foreclosure sale, he took the title in his own name. Whether this were so or not, his liability would be individual and personal. For his indemnification he has a reclamation against his brother’s estate (Butler v. Cushing, 46 Hun, 521 ; Metcalf v. Clark, 41 Barb. 45, 48; Lockman v. Reilly, 95 N. Y. 64; Jackson v. Van Dalfsen, 5 John. 43; Jackson v. Walsh, 14 Id. 407; Jackson v. Brooks, 8 Wend. 426 ; Valentine v. Belden, 20 Hun, 537; Gardner v. Ogden, 22 N. Y. 327 ; Ferrin v. Myrick, 41 Id. 315, 322; Pumpelly v. Phelps, 40 Id. 59, 67; Moss v. Livingstone, 4 Comst. 208; De Witt v. Walton, 5 Seld. 571; Bush v. Cole, 28 N. Y. 261; New Haven Co. v. Quintard, 6 Abb. Pr. [N. S.] 128; Jackson v. Whedon, 1 E. D. Smith, 141; Brett v. First Universalist Society, 63 Barb. 610; Tamisier v. Cassard, 17 Abb. Pr. 187; Russell v. Clapp, 7 Barb. 482).
    XI. The decision of the referee that the plaintiff is not entitled to recover at all, makes it unnecessary to consider his liability for the loss by fire. Of that liability there can be no question. It was not too remote; it was a direct result of the wrong of the defendant. The natural consequence of the fall of a building used for manufacturing purposes, in which fire is used, is that a conflagration shall ensue. Whether or not the defendant or his servants «expected the loss to ensue, had nothing to do with the logic of cause and effect (Insurance Co. v. Tweed, 7 Wall. 44 ; Pollett v. Long, 56 N. Y. 200 ; Seybolt v. N. Y. L. E., etc. R. R. Co., 95 Id. 562, 568 ; Lowery v. Manhattan R. R. Co., 99 Id. 158; Milwaukee R. R. v. Kellogg, 94 U. S. 469 ; Webb v. Rome, etc. R. R. Co., 49 N. Y. 420 ; Simons v. Monier, 29 Barb. 419; Guille v. Swan, 19 Johns. 381; Field v. N. Y. Central, etc. R. R. Co., 32 N. Y. 339; Penn. R. R. v. Hope, 80 Penn. St. 373, and 21 Am. Rep. 100; Vaughan v. Menlove, 3 Bing. N. C. 468; Tanner v. N. Y. Central R. R., 13 N. Y. State Rep. 501 [Ct. Appeals, Jan. 17, 1888] ; Ryan v. N. Y. Central, 35 N. Y. 210 ; Reiper v. Nichols, 31 Hun, 491; Lansing v. Stone, 37 Barb. 15 ; Sheldon v. Sherman, 42 N. Y. 484, 487).
    XII. If the referee erred in regard to the relation of the parties, there must be a new trial. For he has found that the defendant was a mere stranger to the plaintiff and owed him no duty at all (Webber v. Herkimer R. R. Co., 109 N. Y. 311; Larmore v. Crown Point Iron Co., 101 Id. pp. 394, 395).
    
      Albert Stiekney (Stiekney c& Sheppard, attorneys) forth e respondent.
    I. The only liability in this action is for negligence. The damages sought to be recovered are consequential, for the loss by fire, to personal property, mainly in another building than the one in which the alleged negligent acts arc charged to have been committed. If it were conceded, that there was a contract of letting between the plaintiff and the defendant, the only liability under that contract, for any breach of an alleged covenant for quiet possession, or otherwise, would be for damages to the possession of realty (Doupe v. Genin, 45 N. Y. 119; Howard v. Doolittle, 3 Duer, 464). But no such liability is alleged. The only liability charged in the complaint is for negligence, and for damages to personal property. The plaintiff’s rights as to his personal property were no larger than those of an absolute owner of a fee in real estate. .In the-case of an absolute owner of a fee there would be no liability except on proof of negligence. This has been held in many cases, as to the owner of adjacent buildings, and as to the owner or landlord of other portions of the same building (Losee v. Buchanan, 51 N. Y. 476; Partridge v. Gilbert, 15 Id. 601; Stapenhorst v. Am. M’f’g. Co., 15 Abb. Pr. N. S. 355 ; Moore v. Goedel, 34 N. Y. 527 ; Austin v. Hudson River R. R. Co., 25 Id. 334; Lasala v. Holbrook, 4 Paige, 169 ; Jaffe v. Harteau, 56 N. Y. 398; Spellman v. Bannigan, 36 Hun, 174; Lawler v. Baring Boom Co., 56 Maine, 443; Carson v. Western R. R. Co., 8 Gray, 423; Burroughs v. Housatonic R. R. Co., 15 Conn. 124; Ross v. Feddin, L. R. 7 Q. B. 661; Carstairs v. Taylor, L. R. 6 Exch. 217 ; Gill v. Middleton, 105 Mass. 477).
    II. The burden of proof is on the plaintiff to establish negligence (Searles v. Manhattan Railway Co., 101 N. Y. 661; Heinemann v. Hurd, 62 Id. 448 ; Edwards v. N. Y. & H. R. R. Co., 98 Id. 245; Dillon v. Sixth Ave. R. R. Co., 48 Super. Ct. [J. & S.] 283 ; affirmed in 97 N. Y. 627 Lamb v. Camden & Amboy R. R. & T. Co., 46 Id. 271, 279, 281; Funcheon v. Harvey, 119 Mass. 469 ; Walden v. Finch, 70 Penn. St. 460).
    III. The plaintiff fails to establish any liability on the ground of negligence, even against Abbott. Not only was the work of Abbott lawful, but it would have been criminal negligence on his part to omit the precautions he took to strengthen the building. Therefore he was not an insurer' he was bound only to use such precautions as would be. taken by an ordinary prudent man (Radcliff’s Ex’ors v. Mayor, etc. 4 N. Y. 195 ; Jarvis v. Baxter, 52 Super. Ct. [J. & S.] 109 ; Swords v. Edgar, 59 N. Y. 28: McAlpin v. Powell, 70 Id. 126 ; Durant v. Palmer, 5 Dutcher, 544). Any ground for holding that Abbott was guilty of negligence is wholly wanting (Edwards v. N. Y. & Harlem R. R. Co., 98 Id. 245 ; Dillon v. Sixth Ave. R. R. Co., 48 Super. Ct. [J. & S.] 283; affirmed in 97 N. Y. 627 ; Walden v. Finch, 70 Penn. St. 460; Sykes v. Packer, 99 Id. 465 ; Blyth v. Birmingham Water Works, 11 Exchequer, 781; Morse v. N. Y. Central, etc. R. R. Co., 39 Hun, 414).
    IV. Even assuming that Abbott was liable on the ground of negligence, the defendant is not liable for the negligence of Abbott. Liability for negligence in the use of real property, like liability for negligence in the use of personal property, attaches to the party who, in law, makes that use ; to the party who, in law, has the occupation and possession. Mere ownership, or the receipt of rents and profits, is not the material circumstance. The owner .always, in one form or another, directly or indirectly, receives the rents and profits. The owner of real property, like the owner of personal property, has the right to transfer the possession and control of his property to any other iperson on any terms he may see fit. After such transfer the liability of such negligence in this use is upon the party who makes that use (Ferguson v. Hubbell, 97 N. Y. 507; Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y. 245; Oakham v. Holbrook, 11 Cush. 299; Stewart v. Putnam, 127 Mass. 403 ; Fiske v. Framingham Manuf. Co., 14 Pick. 491; McCafferty v. Spuyten Duyvil etc. R. R. Co., 61 N. Y. 178; Ditchett v. Spuyten Duyvil, etc. R. R. Co., 67 Id. 425). Abbott, on the uneontroverted evidence in this ease, was at least a tenant at will (Jackson v. Bryan, 1 Johnson, 322; Larned v. Hudson, 60 N. Y. 102; Jackson v. Laughead, 2 Johnson, 75 ; Noyes v. Pollock, L. R. 32 Ch. Div. 53 ; Ryan v. Dox, 34 N. Y. 307; Brown v. Lynch, 1 Paige, 147; Hodges v. Tennessee Ins. Co., 4 Selden, 416 ; Cullen v. Carey, 15 Northeastern Rep. 131).
    V. Even assuming that Abbott was liable on the ground of negligence, and that the defendant is liable for the negligence of Abbott, the defendant is not liable for consequential loss by fire, to the personal property of another in .another building, separate from the one in which the alleged .negligent act was done (Lansing v. Stone, 37 Barb. 15; Ryan v. N. Y. Central, etc. R. R. Co., 35 N. Y. 210; Reiper v. Nickols, 31 Hun, 491; Pennsylvania Co. v. 
      Whitlock, 99 Ind. 16, 19; Morrison v. Davis, 20 Penn. St. 171; Hoag v. Lake Shore, etc. R. R. Co., 85 Penn. St. 293; Lowery v. Western Union Tel. Co., 60 N. Y. 198; Sharp v. Powell, L. R. 7 Com. Pl. 253; Webb v. Rome, etc. R. R. Co., 49 N. Y. 420 ; Tubervil v. Stamp, 1 Salk. 13; Vaughan v. Menlove, 3 Bingham, N. C. 468).
    
      
       See note on unexplained casualty as evidence of negligence, in 10 Abb. N. C. 205.
      But even in case of a carrier the presumption does not necessarily prevent the court from divesting a verdict. Pa. Com. Pl. February, 1889) Legal Intelligencer, February 8, 1889.
      In Butler v. Cushing, 46 Hun, 521, it was held that a landlord who, while engaged in repairing a building by raising its floors, thereby dispossesses a tenant and destroys his property through the building falling in the process of the work, is liable to the tenant for his injuries, irrespective of the question of negligence in the performance of the work..
    
    
      
       See note on liability for spread of fire at the end of this case.
    
   Van Brunt, P. J.

This action was brought to recover damages from the defendant by the plaintiffs, who w re tenants, because of the negligence "of his agents, which ;aused the building to fall and take fire.

The referee found in favor of the defendant uj on all the main issues, viz.: that there was no negligence ; tl at the defendant was not in possession, and consequently not liable for negligence, if there was any ; that the fall of the l nilding was not caused by the yielding, giving away or brea\ing of its foundations or supports, and that the fire was n it a natural or proximate result arising from the fall of '.he building.

Although it is apparent that the judgment appealed from must be reversed, because of error in the admission of evidence, in view of the numerous and intricate questions involved in the determination of the rights of all the parties herein, lest by not considering them we may be deemed to have acquiesced in the conclusions of the referee, it seems to be necessary to briefly consider the other questions raised upon this appeal.

It was clearly error to"admit the “Practical History of the Transactions between the defendant and S. M. & A. Houghton.” This was a mere memorandum made by the defendant, made at some time,—it may be after this suit was brought,—setting forth his view as to the transactions between Houghton and himself, and was a mere ex-parte statement forming no part of any account or agreement. If such a memorandum is admissible/ then in any case any memorandum made by a party in his own favor, at any time, must be competent evidence. It is clear that this is not so. If it is claimed that the memorandum is a denial of what might be deduced from the accounts, it cannot be put in evidence even for that purpose, as the denial was not communicated to anybody, was always within the defendant’s own control, to be disclosed or not as his interest might require, and would be no more entitled to admission in evidence-than would the mental resolutions of the witness which had-never even found expression in words.

We will now consider briefly the main issues involved. The question as to whether or not the defendant was liable-under any circumstances naturally first suggests itself. By the pleadings the defendant admits that he was the owner of the premises in question, but alleges that he has no knowledge or information sufficient to form a belief as to whether, at the time of the accident, the plaintiff was a tenant in the-building mentioned in the complaint under a lease from, him, or otherwise. In view of the contention now made by the defendant that he was not in possession of the building, had no tenant therein and never had any, the form of this-denial is very significant. It is consistent with the idea that his agent had done the letting and he had no knowledge-upon the subject, but it is inconsistent with the idea that he-had never had any tenants whatsoever in that building. If the latter had been the fact, he did have knowledge sufficient to form a belief upon the subject. He knew that the-allegation was untrue, and he would have denied the allegation as broadly as he has other allegations in the complaint.

The claim that the defendant was not in possession, but-that Abbott was tenant at will and in possession, is inconsistent with the whole course of dealing of the parties. There is no pretense of any lease, no rent reserved, no right of possession in Abbott fór a single instant. Upon the contrary, defendant could have taken actual possession at any moment, and did actually pay Abbott for his services, who paid over to the defendant the amount received over and above expenses, rendering detailed accounts of receipts and expenses,. showing tenants’ names and rent received from each, and disbursements made in caring for and maintaining the property. Under the evidence showing the relations between the defendant and Abbott, if the defendant had demanded possession and Abbott had insisted upon remaining his tenant at will, demanding the statutory notice to quit, I do not think that any such claim could be upheld, but that the defendant would be adjudged in possession against Abbott, the latter .having no right to possession, except as the agent of the defendant.

The whole of the transactions between the parties showed that Abbott was expected to and did account to the defendant, as owner, for the moneys realized by letting the premises, less expenses and the sums agreed to be paid over to him for his services.

The next question presented is as to the liability of the defendant because of the negligence of his servants. The referee has found that there was no negligence, and if this conclusion is borne out by the evidence, then no liability against the defendant, even if deemed in possession, has been established.

The plaintiff was tenant of a portion of the upper part of the building which fell, and Abbott attempted to repair the lower floor of the building, so as to suit the demands of a new tenant. In doing so he interfered with the supports of the building, and for some reason, which we cannot definitely determine from the evidence, the building fell, and loss ensued. It is undoubtedly true that the foundation of this action is negligence, and that negligence inust ordinarily be affirmatively shown, or facts proven from which negligence may be legitimately inferred, and which are inconsistent with want of negligence, but the relations of the parties may be such that the happening of an accident imputes negligence until the contrary is shown.

It is the familiar rule that where a passenger is seeking to recover from a railway company damages sustained by the happening of an accident to a train upon which he is traveling, after the accident is shown to have occurred, there is a presumption of negligence, as such results, in the ordinary course of events, are only caused by negligence, and the burden is upon the railway company to show, if it seeks to absolve itself, that the accident was occasioned by some cause which could not be foreseen of guarded against.

In the case at bar the plaintiff was a tenant of the defendant. It occupied the upper floor of the building and was entitled to undisturbed occupation thereof ; and although the defendant was not perhaps an insurer, yet he was bound to do nothing which could interfere with such occupation.

If with tenants in the building the defendant desired to make repairs which affected the supports and foundations of the building, he was bound to use the greatest degree of care, not mere ordinary care, because he is bound to use this degree towards persons to whom he owes no special duty, and if by his alterations he endangers the safety of his tenants, he does so at his peril, and cannot shield himself from responsibility, after a catastrophe has happened, by saying I used ordinary care and employed skillful mechanics, but in spite of all, for some unknown reason, the building fell.”

The presumption in such a case would be that the building fell because of the repairs, and unless the landlord could show what the cause was, and that he was in no degree responsible for it, such presumption would remain. Xo such explanation is made out here, and, consequently, the landlord is not excused.

We have examined the eases referred to by the learned' counsel for respondent, but none of them present the question which is being considered.

In none of them was the accident presumably caused by the direct interference with the supports of the building as in the case at bar, but the accident happened without any warning, such as would put a prudent man upon his guard. There is a vast difference, it seems to us, in the rule which is to govern cases where the accident happened presumably through the active interference of the landlord and those cases where the accident happened from some cause the existence of which a man of ordinary prudence would not have any reason to suspect. If a landlord assumes to meddle with the supports of an occupied building he does so at his peril; and if an accident is caused thereby and his tenants are injured—to whom he owes the duty of leaving them in quiet possession—the least that can in justice be required is that he should show that he has exercised the highest degree of care, and that, notwithstanding such care,, the accident has occurred.

It is claimed that whatever the liability of the defendant may be, he is not liable for any loss arising from the destruction of property by fire, because the damage was toe remote.

That the defendant is not liable for the damage which was caused by the burning of the adjoining buildings, seems-to be clear from principles laid down in the adjudicated cases (Ryan v. New York Central Railroad Company, 35 N. Y. 210). In that case—and in this respect it has not been overruled—it is laid down as the law of this State, that where a house takes fire through the negligence of the owner, or his servant, and the flames extend to and destroy an adjacent building, that such owner is not liable for the damage sustained by the owner of the second building by such burning.

Applying this rule to the case at bar, although by the fall of the building upon which the repairs were being made its destruction by fire was to be anticipated, because fires were used therein, that the fire should spread and consume other buildings was not a necessary or a usual result, and depended upon many circumstances, in the absence of any one of which this result would not have followed.

We can see no distinction between the case of Ryan and the one at bar. The fact that the same person owns both buildings can in no way affect the question, as if the owner of the building in which the fire originated would not be liable to the owner of the second building, neither would be be liable to the occupants of the second building, no matter whom its owner might be. Although it is claimed that by subsequent decisions the court of appeals have overruled the Ryan case, yet in none of the cases were the facts the same, and the court expressly refrains from holding that the Ryan ease is no longer authority.

If the law in this State is different from that stated in the Ryan case, and if the occupant of a house is to be held liable for the destruction of adjacent buildings, where his •servant has, by his carelessness, caused a fire in the house •occupied by him, it is time that it should be known, as not one conflagration in ten- occurs except through the negligence of somebody.

The buildings in the case at bar had separate and distinct walls of brick and stone, and are to be deemed separate and distinct -buildings in the consideration of this question, and we can see no ground of liability upon the part of the defendant for the loss arising in such a building?

For the loss occurring by fire in the building itself, there seems to be a clear liability, if negligence is established.

As well might a railway company claim exemption from liability from damages arising from an accident because, although it had injured its passengers by a collision occasioned by negligence, yet as the train had taken fire and the passengers had been burned up, no damages could be recovered as the burning of the train was not the natural and proximate result ordinarily arising from railway accidents.

We have failed to meet any case where even these corporations have had the temerity to advance such a plea.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daniels and Bartlett, JJ., concurred.

Note on Liability fob Sebead of Fibe.

Few questions have caused a more decided antagonism of judicial opinion than that as to liability for injury done by fire negligently caused. As in the case of many classes of frauds, the tendency of the courts seems tobe to turn the question over to the jury as a mixed question of law and fact, to be determined by them under appropriate instructions, but what those instructions shall be, renews much the same question. For several forms of instruction, see 2 Thomps. Tr. 1310. The practitioner will be aided in the use of the authorities cited below by observing that the principal elements which are significant in determining the question of liability are indicated by the following questions:

1. Bid the conflagration originate in the ordinary domestic or agricultural use of fire ?

2. Was gross negligence in the care of such fire the immediate cause of the conflagration ?

3. Bid the conflagration originate from fire used in the more dangerous methods required by the modern uses of •steam ?

4. Was there neglect of known precautions which would have prevented the conflagration F

5. Was the location an open rural country or closely built .suburban property F

6. Was the passage of ignition direct from the premises ■of the defendant to the injured premises, or were the injured premises reached by a second reproduction of the fire derived from intermediate premises of a third person.

The two leading cases in this State are Ryan v. N. Y. Central R. R. Co., 35 N. Y. 210, and Webb v. Rome, Watertown, etc. R. R. Co., 49 N. Y. 420.

Eyan case; second reproduction on more remote premises.] Ryan v. N. Y. Central R. R. Co., which is cited and followed by the case in the text, denied the right of the adjoining owner to recover.

The facts in that case were as follows: The defendant railroad company, in the city of Syracuse, through either careless management or insufficient condition of one of its engines, set fire to its wood-shed, and the fire by heat and sparks spread to the plaintiff’s house, situated at a distance of one hundred and thirty feet from the shed, and entirely consumed it. The plaintiff’s action was for the value of the house destroyed.

Hunt, J., stated the question at issue, as follows: “ A house in a populous city takes fire through the negligence of the' owner or his servant; the flames extend to and destroy an adjacent building: Is-the owner of the first building liable to the second owner for the dam. age sustained by such burning ?”

In holding the action not sustainable, Hunt, J., after discussing the question of liability for proximate damages in the supposed case of many houses successively catching from one another, says: “ I prefer to place my opinion upon the ground that, in the one case, to wit, the destruction of the building upon which the sparks were thrown by the negligent act of the party sought to be charged, the result was to have been anticipated the moment the fire was communicated to the building; that its destruction was the ordinary and natural result of its being fired. In the second, third, or twenty-fourth cases, as supposed, the destruction of the building was not a natural and expected result of the first firing. That a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not infrequent, cannot he denied. The result, however, depends, not upon any necessity of a further communication of the fire, but upon a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind. These are accidental and! varying circumstances. The party has no control over them, and is-not responsible for their effects. My opinion, therefore, is, that this action cannot be sustained, for the reason that the damages incurred are not the immediate but the remote result of the negligence of the defendants. The immediate result was the destruction of their own wood and sheds; beyond that it was remote.”

Webb case; first reproduction by direct passage across boundary.] In the Webb v. Rome, Watertown, etc. R. R. Co. case, the plaintiff was the owner of woodlands adjoining defendants’ ' railroad, and a locomotive, in passing, -dropped live coals upon the track which set fire to a tie, from which the fire was communicated to an old tie at the side of the track, and from thence to an accumulation of weeds and grass which had been cut down by the side of the track and permitted to lie there, and to other rubbish on the defendants’ land; from thence to the dividing fence, and thence, upon plaintiff’s land, burning trees and doing the damage complained of. There was at the time a severe drought, and the wind was strong towards plaintiff’s-lands. Evidence of the defective construction of the locomotive was also given. Plaintiff recovered at the trial and was sustained by the general term and court of appeals.

The court, per Folger, J., recognizing the familiar rule that where-the connection is immediate, liability follows [citing Beaulieu v. Finglam, cited by Denio, J., in Althorf v. Wolfe, 22 N. Y 355-366, from the Year Books; Snagg’s Case, reported as anonymous, Cro. Eliz. 10 pl. 5 ; Tubervil v. Stamp, 1 Salk. 13; Pantam v. Isham, Id. 19; Clark v. Foot, 8 J. R. 421; Filliter v. Phippard, 11 Q. B. Rep. 347 ; Barnard v. Poor, 21 Pick. 378; Field v. N. Y. C. R. R. Co., 32 N. Y. 339 ; Smith v. L. & S. W. Ry. Co., L. R. 5 Com. Pl. 98], add: It is urged' that the decision in Ryan v. N. Y. C. R. R. Co. (35 N. Y. 210), followed and approved in Penn. R. R. Co. v. Kerr (62 Penn. St. 353) has announced a rule which conflicts with the cases hereinabove cited. I do not understand it to be so, or that the decisions in 35 N. Y. and 62 Penn. St. (supra), put forth a new rule of law, or one which has not been acted upon and recognized pari passu, with the recognition and growth of the principles upon which most of the cases above cited are based. In Ryan’s case, the opinion of the court was that the action could not be sustained, for the reason that the damage incurred by the-plaintiff was not the immediate but the remote result of the negligence-of the defendant. It certainly was not a new rule that the damages resulting from an act may be too remote for the actor to be liable-therefor. The court defined remote damages to be, those which are not an ordinary and natural, not an expected, not a necessary and usual result of the negligent act; and still further, as those which depend upon a concurrence of accidental and varying circumstances, over which the negligent party has no control. This was not a modern definition. . . . The principle applied was the converse of that enforced in Vandenburgh v. Truax (4 Den. 464), which was that the consequence-complained of was the natural and direct result of the act of the defendant. This principle is said in the Ryan case not to be inconsistent with that which controlled the disposition of the latter case, and to be unquestionably sound, but to be applied according to sound ¡judgment in each case as it arises. The case from the Pennsylvania. Reports is the same in its material facts, the same in the principle on which it is put, and in the process of reasoning by which that principle is applied to the facts. I am of the opinion, that in the disposition of the case before us, we are not to be controlled by the authority of the case in 35 N. Y. more than we are by that of the long line of cases which preceded it, and which have been herein cited and adverted to. It announces no new principle. It recognizes the principle which it adopts as one before that established, and applying it to the facts therein existing, holds that the damage sued for was not the necessary and natural result of the negligent act. A different state of facts brought into the focus of the same principle, would give a different conclusion. It is'proper, however, to say, that it is not necessary in this case to differ from or to question the reasoning in that case, which fortifies the conclusion there reached, by a consideration of the relations of men to each other in populous villages and cities, and the disastrous consequences to follow from holding one liable for his own or his servant’s negligence by which a fire is tonified in his house, which spreads to the property of one or more neighbors. But if in a time of extreme drought and high wind, there be laid or suffered to gather a train of readily combustible matter up to the bounds of another’s property, it is not to be denied but that it is an act of negligence to drop fire at the hither end of that train; nor that it is an ordinary, a usual, a necessary result, reasonably to be expected, that the fire will'run, from particle to particle through it, and catch in whatever will burn which is adjacent at the thither end.”

■ Kerr case; second reproduction.] The case which nearest approaches the Ryan case in the similarity of its facts is Pennsylvania R. R. Co. v. Kerr, 62 Penn. St. 353; s. c., 1 Am. R. 431. This.case has been frequently cited and criticised in connection with the Ryan case, •and reaffirms the doctrine of that case. The facts were as follows : Sparks from one of the railroad company’s locomotives set fire to a warehouse situated near the railroad track, and the fire was communicated to the hotel of the plaintiff, thirty-nine feet distant, and destroyed it. At the time a brisk wind was blowing and several other buildings were also destroyed by the fire. The plaintiff recovered below, but the decision was reversed on appeal, and judgment ordered for the defendant on the authority of the Ryan case.

The court (per Thompson, O. J.) commenting on the Ryan case, and after stating the facts in that case, say: “ Every position taken by the counsel for the defendant in error here was taken there, and examined and answered fully in the opinion. All the English and American •cases supposed to have any bearing on the point in dispute there, on the same question we have here, are noticed by him (Hunt, J.), and this doctrine clearly deduced that the railroad company was not answerable to the plaintiff for the loss of his house being burned by fire communicated by the burning shed. That case is not distinguishable in principle, or in the manner of destruction, from this. It is on all fours with this case.”

Contra.] But seethe case of Fent v. Toledo, Peoria, etc. Ry. Co., 59 Ill. 349 ; s. c., 14 Am. R. 13, where a recovery for the plaintiff was sustained, it appearing that by reason of the negligence of the defendant railway company, sparks from a locomotive set fire to a warehouse, and the fire was then carried by a high wind to the plaintiff’s building, two hundred feet distant, and consumed it.

The court, referring to the Ryan and Kerr cases, say: “We are wholly unable to agree with their conclusions. These two cases stand alone, and we believe they are directly in conflict with every English or American case, as yet reported, involving this question.”

Same.] Adams v. Young (Ohio, 1886), 3 Western Rep. 145 ; s. c., 4 Northeastern Rep. 599. The fire was carried to the plaintiff’s dwelling, three hundred and sixty feet distant, as follows: Commencing first in a stable one hundred feet from the defendant’s boiler-house by a spark from an alleged defective chimney in the boiler-house, thence to a building belonging to another, two hundred feet from the stable in the direction of the plaintiff’s dwelling, and thence to the plaintiff’s dwelling. The plaintiff’s action for his losses was sustained, the court holding that the question of the defendant’s negligence was properly submitted to the jury ; and after referring to the Ryan case as having been subsequently explained and distinguished by Folgek, J., in the Webb case, say that the Ryan case had also been disapproved in Delaware, etc. R. Co. R. v. Salmon, 39 N. J. L. 299 ; Kellogg v. Chicago, etc. R. R. Co., 26 Wisc. 223; Fent v. Toledo, etc. R. R. Co., 59 Ill. 349, and that each case must be determined by its own peculiar facts, and so is largely' within the province of the jury ; and that the defendant should be held liable because no new cause, operating after the fire was carried from the chimney of the mill was shown.

Successive ignitions returning to near the place of origin.] Reiper v. Nichols, 31 Hun, 491. Where, through the negligence of the owners of premises, fire, communicated therefrom, consumed a building, and the building thus fired, in process of burning, set on fire the building of another nearer the place where the fire originated, and the latter building in burning, set on fire the building of another nearer still to the place of the original source and practically alongside of it, and in the course of these successive ignitions the fire twice crossed the street.— Held, that the owners of the premises where the fire originated were not liable for the loss by fire of the last named building, and hence that it was error to leave it to the jury whether or not the negligence of the defendants was the natural and proximate cause of the burning of such building. So held, where it appeared that, besides the negligence of the owners, there were intervening causes, such as a change in the direction of the wind, the combustible nature of the building first burned, etc. And the court (per Potter, J.), after citing Ryan v. N. Y. Central R. R. Co. (above cited), say: “The plaintiff should have been non-suited according to the authority of that case. I do not find that that' case has been overruled. It was the subject of comment by Judge Folger in Webb v. Rome, Watertown, etc. R. R. Co. (49 N. Y. 420). He sought to distinguish the latter case from the Ryan case, thus indirectly approving the decision in the latter case...... The two cases do hot impinge upon each other, or they were not so regarded by the court of appeals. Hence I must conclude that the case under consideration, tested by the standard set up by the case of Ryan, required that the plaintiff should have been non-suited.

Learned, P. J., and Boardman, J., concurred on the authority of the Ryan case.

Second reproduction, car on tracks, catching from depot roof.] Tanner v. N. Y. Central, etc. R. R. Co., 108 N. Y. 628 ; aff’g 21 Weekly Dig. 396. The car in which plaintiff’s goods were, was left near the defendant’s freight depot a few minutes before the fire, apparently for the purpose of unloading. The depot, which was an old building, caught fire from a spark from one of the defendant’s locomotives and was burned. The fire communicated to the car, which was also consumed with its contents, for the loss of which a recovery was sought. There was evidence of the dry condition of the roof of the depot, which was an old one, and was covered with moss extending down to the car. Held, that the question of the defendant’s negligence was properly submitted to the jury.

Guarding fue when purposely set.] Calkins v. Barger, 44 Barb. 424. Defendant set fire to some damp logs on his own premises, situated about one-third of- a mile from the plaintiff’s barn ; and there being no wind he left the fire, and after being absent some time a gale blew up, which communicated the fire to the plaintiff’s barn, as well as to property of the defendant, —Held, in the absense of proof of negligence on the part of the defendant the plaintiff could not recover; and that it was not of itself negligence for the defendant to leave the burning pile of logs at a time when no wind was blowing.

To. the same effect, under. a somewhat similar state of facts, was Stuart v. Hawley, 22 Barb. 619.

Calkins v. Barger and Stuart v. Hawley were cited as authorities in Hays v. Miller, 6 Hun, 320 (aff’d in 70 N. Y. 112), but a recovery for the plaintiff was sustained on the finding of the referee that the defendant in that case was guilty of negligence in failing to properly guard the fire which he had set upon his lands.

Explaining origin of fire.] Field v. N. Y. Central R. R. Co., 32 N. Y. 339. The fire appeared some twenty-five rods from the defendant’s railroad track,and remote from buildings or other fire of any kind. It occurred during the night time, and the evidence tended strongly to show that it was communicated by the defendant’s engines.—Held, sustaining a recovery for the plaintiff upon a submission of the case to the jury, that the defendant’s contention—that the omission of the plaintiff to affirmatively prove its negligence was ground for a non-suit—was untenable so far as it became necessary to show that there was something unsuitable or improper in the construction, condition or management of the defendant’s engines, and that it was legitimately to be inferred that the scattering of coals of fire from the engines, which were found upon the track and produced the injury, was the result either of defectiveness in the machinery or neglect in repairing it.

To same effect was Philadelphia, etc. R. R. Co. v. Hendrickson, 80 Penn. St. 182; s. c., 21 Am. R. 97 ; Clemens v. Hannibal and St. Joseph R. R. Co., 53 Mo. 366.

See head-note to case in the text, and note on unexplained casualty, there referred to.

Question wholly for the jury.] In Pennsylvania R. R. Co. v. Hope, 80 Penn. St. 373 ; s. c , 21 Am. R. 100, sustaining a verdict for the * plaintiff for losses by fire communicated by a locomotive to a cross-tie of the track, and which then spread through rubbish and dry grass -to the plaintiff’s lands, the court, distinguishing Pennsylvania R. R. Co. ®. Kerr (above cited) say: “ The question of proximity was one of fact peculiarly for the jury. How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury.”

The following cases also sustain the rule that the question of negligence, resulting in losses occasioned by the spread of fire, is one for the jury: Gagg v. Vetter, 41 Ind. 228 : s. c., 13 Am. R. 322; Kellogg v. Chicago and Northwestern Ry Co., 26 Wis. 223; s. c., 7 Am. R. 69 (distinguishing the Ryan and Kerr cases and holding that the facts were like those of Field v. N. Y. Central, etc. R. R. Co. above cited, and following that case) ; Delaware, Lack. & W. R. R. Co. v. Salmon, 10 Vroom, 299; Milwaukee, etc. Ry. Co. v. Kellogg, 94 U. S. 469.

Ordinary domestic uses of fire. | Lansing v. Stone, 14 Abb. Pr. 199; s. c., 37 Barb. 15. Here was no spread of fire to adjacent premises, but the fire originated in the plaintiff’s house, which he rented from the defendant, who it appeared had a license to enter the house, and did so with a lighted candle; although it did not positively appear that the candle caused the fire. The court held that the statute (6 Anne, 3) which provided that no action shall be maintained against any in whose-house or chamber any fire shall accidentally begin, was part of the common law of the State, and say : “ I think the plaintiff could not recover, by reason of the common law that exempts a person from liability for damage caused by a fire that accidentally begins in his own house or other building through the carelessness or negligence of himself, or his servant, and burns the house or other property of his neighbor, without showing that the fire was caused by the wilful act of the defendant, or that he wrongfully entered the house or chamber with a lighted candle.” Judgment for plaintiff reversed.

Canal-boat.] Teall v. Barton. 40 Barb. 137. The defendants were engaged in removing a sunken boat from a canal by means of a steam dredging machine, in the vicinity of the plaintiff’s farm buildings -t using wood for fuel, without any spark-catcher or screen upon their smokestack. A high wind blowing the sparks and cinders to and over the farm buildings, the defendants were notified by the plaintiff of the danger ; notwithstanding which, the defendants continued, without putting on a spark-catcher or using any extraordinary precaution. The plaintiff’s buildings being consumed by fire communicated by such, sparks,—Reid, that the defendants were guilty of carelessness and negligence, and were liable for the damage occasioned by the fire.

Actual negligente.] The statute provides : “Every person negligently setting fire to his own woods, or negligently suffering a fire, kindled upon his own wood or fallow land, to extend beyond his own land, shall forfeit treble damages to the party injured thereby. 3 R. S. (7 ed.) 2086, § 1.

It is also a misdemeanor, Ib. ; and Penal Code, § 413.

See the subject fully discussed in 2 Shearman and Redfield on Negligence (4 ed.) § 665-682.  