
    Angell v. Hill.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1892.)
    1. Animals—Trespass by—Division Fences.
    In an action for damages to plaintiff’s field of corn by defendant’s cattle, where the parties were adjoining proprietors, and there was no evidence that the fence viewers had located or divided any fence between the lands, nor that there had been any location or division of any partition fence made by the parties, defendant was remitted to his common-law obligation to keep his cattle on his own land; and it Was no defense that plaintiff had failed to maintain a partition fence.
    2. Appeal—Rulings on Evidence—Harmless Error.
    Though rulings of the court as to the admission of evidence were not technically correct, yet where the merits were not affected thereby the judgment will not be disturbed on account of such rulings.
    Appeal from Otsego county court.
    Action in justice court by James M. Angelí against Barnet N. Hill. From a judgment of'the county court reversing a judgment of the justice court in favor of plaintiff, plaintiff appeals.
    Reversed.
    •The action was for trespass by defendant’s cattle going upon the plaintiff’s land, and injuring his crops of corn. The plaintiff’s lands were situated in the town of New Berlin, Chenango county. The defendant’s, which adjoined the plaintiff’s, were situated in the town of Pittsfield, Otsego county. The plaintiff’s lands are bounded on the east by the Unadilla river, and the defendant’s on the west'by the same stream. The Unadilla river is not a navigable stream. The defendant’s cattle crossed, from his premises, passing through the stream onto the plaintiff’s lands. There was no evidence that the fence viewers had located or divided any fence between the parties, nor that there had been any location or division of any partition fence made by the parties.
    Argued before Hardin, P. J.,. and Martin and Merwin, JJ. °
    
      J. &. Holmes and H. H. Harrington, for appellant. E. J. Arnold and O. E. Matterson, for respondent.
   Martin, J.

This action was for damages to plaintiff’s field of corn, committed by the defendant’s cattle in the years 1886 and 1887. It was tried in a justice’s court, where the plaintiff had judgment for $20 damages, with costs. From that judgment an appeal was taken to the county court, and the judgment reversed. The grounds of such reversal are unknown, as no opinion or memorandum was made by the learned county judge. The respondent, however, seeks to uphold the judgment upon the grounds (1) that it was the duty of the plaintiff to build and maintain a proper partition fence between the lands of the parties, who were adjoining owners, and, having failed, the defendant was not liable for the injury to the plaintiff’s crops; (2) that the justice erred in his .rulings upon the admission and rejection of evidence.

. The appeal book contains no proof that a fence between the lands of the parties was ever either located or divided pursuant to the provisions of the statute then in force, relating to division fences. - 2 Rev. St. (8th Ed.) p. 903, § 30 ei seq. Nor was there any evidence showing any location or division of a partition fence between the parties by agreement or otherwise. The owner of domestic animals, such as horses, cattle, sheep, etc., was at common law bound to keep them safely on his own property. Stafford v. Ingersol, 3 Hill, 38; Van Leuven v. Lyke, 1 N. Y. 515, 517.. Where the cattle of one of two adjoining proprietors are found trespassing upon the land of the other, the owner of the cattle, to excuse himself, must show, not only that the fences which the other proprietor was bound to maintain were out of repair, but also that the cattle passed over such defective fences. Deyo v. Stewart, 4 Denio, 101. “Where parties are jointly bound to maintain a partition fence, and neither is severally bound, either by agreement or by statute, to maintain any particular part, the defectiveness of such fence is no defense to an action of trespass by the cattle of one upon the other; .and the parties are remitted to their common-law rights and obligations as to keeping their cattle from stray-' ing beyond their own land. * * ' * In order to escape liability for trespass' committed through the insufficiency of such fence, it. must appear to have been divided either according to .the statute or by a binding agreement, so as to throw upon each owner the obligation of maintaining some particular part •of it, and that the defect by reason of which the injury arose was upon the plaintiff’s part.” 7 Amer. & Eng. Enc. Law, 895; Bush v. Brainard, 1 Cow. 79, notea; Little v. Lathrop, 5 Greenl. 356; Sturtevant v. Merrill, 33 Me. 62; Knox v. Tucker, 48 Me. 373; Rust v. Low, 6 Mass. 100. These authorities render it quite obvious that the proof was insufficient to establish a defense to the plaintiff’s action, and that the justice properly awarded him a judgment for the damages he sustained.

The only remaining question we need consider is whether the justice committed any error in his rulings as to the admission of evidence, which requires the reversal of the judgment. We have carefully examined each of the rulings made; and, while.it may be that some of them were not technically correct, still we find none that seem to have affected the merits. Hence, under the rule applicable to appeals of this character, the judgment ought not to have been reversed on account of such rulings. Code, § 3063; Olendorf v. Sullivan, (Sup.) 13 N. Y. Supp. 6; Greene v. Walton, Id. 147; Morehead v. Brown, Id. 198; Griffin v. Jackson, Id. 321; Bump v. Dehany, (Sup.) 12 N. Y. Supp. 901; Tuttle v. Bennis, (Sup.) 11 N. Y. Supp. 600; Lockwood v. Lockwood, (Sup.) 14 N Y. Supp. 831. We think the judgment of the justice was proper, sustained by the evidence, and that there were no rulings which authorized a reversal. Judgment of the county court reversed, and judgment of the justice affirmed, with costs to the. appellant. All concur.  