
    J. Frank Shepard, Respondent, v. The Pennsylvania Railroad Company, Appellant.
    
      Shepard v. Pennsylvania R. R. Co., 166 App. Div. 970, affirmed.
    (Submitted November 22, 1917;
    decided December 11, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 11, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The complaint alleged that the plaintiff was the owner of and was pasturing several horses in a lot situated and adjoining the highway between Geneseo, N. Y., and Piffard, N. Y.; that the horses escaped from the lot into the highway, ran along the highway to a road leading to the residence of one Jessie B. Wads-worth and passed through the entrance to the grounds surrounding the said residence. The complaint further alleged that no fence had been erected by the defendant between the grounds of said Jessie B. Wadsworth and the track of the defendant and that the plaintiff’s three horses went from said Wadsworth’s grounds on to the track of the defendant, where they were struck by a train and killed. The defense was that the defendant did not build or maintain a fence opposite the home grounds of said Jessie B. Wadsworth and between said grounds and defendant’s railroad premises for the reason that said Jessie B. Wadsworth desired that the defendant should not build or maintain said fence, for the reason that it would injure and detract from the beauty of the residence and the grounds surrounding it, and that in compliance with said desire and wish of the said Jessie B. Wadsworth, this defendant refrained from constructing and maintaining a fence at the point where the said animals of the plaintiff passed from the grounds of said Jessie B. Wadsworth on to its right-of-way.
    
      H. J. Adams and Frank Rumsey for appellant.
    
      Frank K. Cook for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Pound, McLaughlin and Andrews, JJ. Dissenting: Chase and Cuddeback, JJ.  