
    H. L. Judd & Co. v. Cushing.
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    1. Evidence—Declarations—Ex Parte Statements—Memoranda.
    One cannot show Ms interest in real estate, or even deny what might be deduced from certain accounts already in evidence, by a memorandum made by-himself of his transactions with the former owners of the property, forming no part of any account or agreement, and not shown to have ever been communicated to any one, or have passed out of its maker’s control.
    2. Landlord and Tenant—Tenancy at Will—Principal and Agent.
    One holding a mortgage as executor foreclosed and bought the mortgaged premises. He agreed that the former owner’s husband should continue in charge of the premises, collect the rents, retain for his own use a certain portion, and account for the balance. When sufficient payments were made the premises were to be recohveyed. The husband having died, his family suggested, and the purchaser agreed, that A. should take his place. A. took possession and control of the premises, made leases, collected rents, made repairs, and, after deducting expenses, his own compensation, and a sum agreed on for the support of the former owner’s family, paid over the balance to the purchaser, to whom he also rendered accounts. Held, that A. was not a tenant at will in possession, but the purchaser’s agent.
    3. Same—Injury to Tenant in Making Repairs—Liability of Landlord.
    A landlord who attempts to make repairs affecting the supports and foundation of an occupied building, which falls during such repairs, is bound to show the cause of the fall, and that he is not responsible for it. The presumption is that the fall was caused by the repairs, and, this being so, the landlord is not excused by showing that he employed skillful mechanics, and used ordinary care.
    4. Negligence—Fires—Injury to Adjoining Buildings.
    Where two adjacent buildings have separate and distinct walls of brick and stone, they are separate buildings within the rule in Rya/n v. Railroad Go., 35 N. T. 210, that where a house takes fire by the negligence of the owner, and the flames extend to and destroy an adjacent building, the owner is not liable to the owner of the second building; and the rule is not changed by the fact that the same person owns both buildings, so as to make him liable to the occupants of the second building.
    5. Same—Proximate Cause.
    A conflagration is the natural and proximate result of the fall of a building in which fires are used; and one who is responsible for the fall must answer, also, for the damages caused by the fire.
    Appeal from judgment on report of Hamilton Cole, Referee.
    Action by H. L. Judd & Co., a manufacturing corporation, against Hath an Cushing, as owner in fee of a building in the city of Brooklyn, of a portion of which it was lessee, for $107,036.82 damages (in excess of insurance) sustained by the fall of the building and by a Are which resulted, which plaintiff alleged was caused by defendant’s negligent and wrongful act. The case was referred by agreement to Hamilton Cole, Esq., as referee, who reported as follows: “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. Whether 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 would 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, 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 óf 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. ” On this report judgment was entered for defendant, and plaintiff appeals.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Richards & Heald, (John E. Parsons, of counsel,) for appellant. Stickney & Shepard, (Albert Stickney, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover damages from the defendant by the plaintiffs, who were tenants, because of the negligence of his agents, which caused the building to fall and take fire. The referee found in favor of the defendants upon all the main issues, viz., that there was no negligence; that the defendant was not in possession, and consequently not liable for negligence, if there was any; that the fall of the building was not caused by the yielding, giving away, or breaking of its foundations or supports; and that the fire was not a natural and proximate result arising from the fall of the 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 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 “partial 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 be 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 withi'n 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 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 whatever 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 for a single instant. Upon the contrary, the defendant could have taken actual possession at any moment, and did actually pay Abbott for his services, who paid over to the defendant the amounts received over and above expenses, rendering detailed accounts of receipts and expenses, showing tenants named 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 in as tenant at will, demanding the statutory notice to quit, we do not think that any such claim could be upheld, but that the defendant would be adjudged in possession against Abbott, he 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 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 must ordinarily be affirmatively shown on 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 or 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 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. ” Tire 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. Ho such explanation is made out here, and consequently the landlord is not excused. We have examined the cases 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 too 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. Railroad Co., 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 he 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 refrain from holding that the Ryan Case 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 ease 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 for 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., concur.  