
    Henry Slingerland, Resp’t, v. William H. Norton, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Evidence—Offeb to settle.
    In an action for injuries to plaintiff’s timber by fire allowed to escape from defendant’s fallow the defendant alleged that the negligence, if any, was that of a third person who had taken a contract to clear the land. On the trial evidence was admitted under objection of an expression on defendant’s part of a desire that the matter might be settled without paying money to the lawyers. Held, error; that the evidence was within the rule excluding evidence of an offer or consent to a settlement.
    3. Sahe.
    So, also, evidence of a settlement by defendant with another neighbor for damages arising from the same fire is inadmissible.
    Appeal from the judgment of the county court of Ontario county, affirming the judgment of a justice’s court.
    
      G. J. Bissell, for app’lt; W. W. Clark, for resp’t
   Dwight, P. J.

The action was for the alleged negligent burning of the plaintiff’s timber by fire allowed to escape from the defendant’s fallow. The defendant controverted the allegation of negligence in the setting and management of the fire on his own land and sought to avoid liability on the ground that the negligence, if any, was not that of himself, his agents or servants, but of a third person who had taken the contract to clear his land fit for the harrow at an agreed price per acre, and that the means and time of accomplishing that result were not in the defendant's control. The justice who tried the case, without a jury, gives the reasons for his judgment in his return, from which it appears that he decided the question of fact last above suggested against the defendant’s contention and found that the person who did the work and set the fire was not an independent contractor but the servant of the defendant and that the latter was responsible for his negligence. The evidence bearing upon this question was conflicting and, unfortunately, it embraced two items of testimony in behalf of the plaintiff, objected to by the defendant, which were improperly admitted. The first was in violation of the familiar rule that negotiations or propositions looking to the settlement of a controversy without action cannot be given in evidence as admissions of liability. 1 Greenleaf on Evidence, § 192; Stevens Dig. of the Law of Evidence, Chase’s Edition, 52, note ; and the cases cited.

The rule is well founded in reason. The law is willing to encourage the compromise and'settlement of controversies without litigation, and holds communications looking to that end as privileged in their character, and not to be used to the prejudice of the party making them. It is true the privilege does not extend to an admission of a disputed fact even though made in the course of such negotiations; but this does not detract from the force of the rule. The principle is that an offer, or consent, or expression of willingness to settle, is not to be taken as an admission of liability, and is, therefore, not evidence of the fact. The testimony objected to was within the rule. There was in it no admission of any fact in controversy, but only the expression of a desire that the • matter might be settled without paying money to the lawyers.

The same rule should, a fortiori, have excluded the testimony, objected to, of the fact of a settlement without litigation of the claim of another neighbor for damage done by the same lire. What motives or considerations may have influenced the defendant to make that settlement does not appear. The fact that he did settle with a third person was not to be taken as an admission of his liability, for the same reason that his proposition to settle with the plaintiff was not to have that effect.

The reasons for his judgment given by the justice in his return are pertinent and forcible, and we should probably have no hesitation to affirm that judgment had the conclusion of fact upon which it was based -been reached upon evidence, all of which was relevant and admissible on the issue involved.

For the error indicated the judgment of the county court and of the j ustice must be reversed.

- Judgment of the county court and of the justice reversed, with costs.

Macomber and Corlett, JJ., concur.  