
    John Norling, App’lt, v. William H. Allee et al., Ex’rs, Resp’ts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed March 24, 1891.)
    
    1. Negligence—Injuries from fence blown down by storm—Trustees.
    Plaintiff was injured by the fall of a fence erected upon property of an estate of which defendants were trustees, which was blown down by a storm of unusual severity. Held, that defendants were not liable.
    2. Same—Leased premises.
    Where the premises in question have been in the possession of a lessee for a number of years, and there is no evidence that defendants were to make repairs, or that the fence was unsafe or out of repair when the lease was made, the defendants cannot be held liable for the condition of the fence.
    Appeal from judgment entered upon a nonsuit.
    
      T. E. Hodgskin, for app’lt; Wm. H. Sage, for resp’ts.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries alleged to have been sustained by him through the negligence of the defendants by reason of a fence on a portion of .the trust estate held by defendants falling upon him:

The defendant William H. Allee alone was served, and he alone answered. In his answer, he denies, inter alia, all negligence in maintaining said fence, or that it was dangerous or ini secure; he further alleged that the fence was blown down by a storm of extraordinary and unusual violence, and through the act of God. A further defence set up was that, at the time that said fence' was blown down, the premises were in the possession and control of one Hart, a tenant, whose duty it was to keep said fence in repair.

On the first trial of this action, plaintiff obtained a verdict which, on appeal, was set aside and a new trial ordered, on the twofold ground that the storm which blew down said fence was of such unusual violence that the result should be treated as the act of God, and not as owing to the negligence of defendants, and also that defendant, as trustee, was not liable for negligence, but that the remedy of the plaintiff, if any, was against him personally. Yid. opinion, 31 N. Y. State Rep., 412.

On a new trial had, at the close of plaintiff’s case, defendants’ counsel moved to dismiss on the grounds:

‘ 1. That no negligence had been shown on the part of the defendant in regard to the condition of the fence.
2. That the proximate cause of the accident was the violent storm prevailing at the time, and not the condition of the fence.
3. That the premises were in the possession of one Hart, and that there was no evidence to show that the defendants were responsible for the condition of the fence or liable to make any repairs to it.
4. That defendants are sued in their representative capacity as executors, trustees, whereas, if they are liable at all, they are liable in their individual capacity, arid that only one of the defendants has been served with process, and that the others have not appeared.

The motion to dismiss was granted, and the case now comes before us again on the exception of plaintiff to the granting of said motion, and to the order denying motion for a new trial on the minutes.

The evidence on the second trial did not differ materially from that on the first trial; indeed it was in some respects weaker.

"We think, for the reasons stated in our previous opinion, the non-suit must be sustained. The principal point in this appeal, to which counsel on both sides addressed themselves, was as to the liability of the defendants in their capacity as trustees. We are referred to no new cases -which tend to alter our views on this point as expressed in our previous opinion. It must be borne in mind that this action is not one in equity-to reach the trust estate and to charge it with the result of the alleged negligence of the defendants in their capacity of trustees. ' Willis v. Sharp, 113 N. Y., 586, 592.; 23 N. Y. State Rep., 670. It is the ordinary common law action for negligence; the liability, if any, is because defendants were negligent, and the fact that they held the title to the premises on which the fence stood fixes no liability on them as trustees, nor does such negligence create any lien on the premises in favor of plaintiff.

The case of Rogers v. Wheeler, 43 N. Y., 598, cited by the learned counsel for the appellant, does not affect the question here in dispute. In that case, defendants, as trustees for bondholders, conducted a railroad, and, in the course of such business, and within its ordinary scope, contracted to carry some grain. The grain was burned, and defendants -as trustees were held liable as common carriers; it there appeared that they held a lien on the trust property to indemnify them for all liabilities incurred in the management of the railroad, and they were held liable for their contracts on the ground that they received the fruits thereof.

That case certainly is no authority for holding the trust estate here liable for the misfeasance or nonfeasance of these trustees in not properly looking after a fence on the trust estate. To hold that by an action against one of three trustees the trust estate could be mulcted, or perhaps absorbed, without giving the other trustees or the cestuis que trustent an opportunity to be heard, is a proposition for which we can find no warrant in law or in equity.

On the trial of the action it appeared that the premises in question had been in possession of one Hart as a tenant for some fifteen years and the fence in question had been erected for about fifteen years. There was no evidence going to show that the defendant trustees were to make repairs, or that the fence was unsafe or out of repair at the time Hart’s tenancy began. In the absence of such proof, we think defendants could not be held liable for fire condition of the fence. Ahern v. Steele, 115 N. Y., 203; 26 N. Y. State Rep., 295, and cases there cited.

We are accordingly of opinion that the judgment dismissing the complaint, and the order denying the motion for a new trial on the minutes, should be affirmed, with costs.

Van Wyck, J., concurs.  