Butler v. Cushing — 12 N.Y. St. Rep. 610

Majority

p. 610

Charles W. Butler et al., Resp’ts, v. Nathan Cushing, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

1. Landlord and tenant—When relation proved to exist.-

On the trial of an. action to recover damages caused by the alleged negligence of defendant for the loss by fire on plaintiff's goods, which were-burned, in a building of which the defendant was alleged to be the owner, it appeared that the property stood in defendant’s name, he having bought it at a foreclosure sale; that it was insured in his name and assessed in his name. That the party who collected the rent accounted to him for the balance after retaining an agreed amount as salary. T he defendant claimed that he held it as trustee for others. Held, that defendant was the landlord and was responsible for any omission of proper care in respect to the property, which was provable against the agent.

3. Same—Right op tenant when forcibly dispossessed by act of landlord—Principal AND AGENT—WHEN PRINCIPAL LIABLE FOR ACT OF1 AGENT.

The building had settled, and the agent with a view to remedying this, employed men to raise and correct it. In so doing supports were removed, causing the building to fall. Held, that if the agent in doing repairs, thereby forcibly dispossessed the plaintiffs, who were tenants, and destroyed their property, the defendant was liable. That the plaintiffs'" rights could not he invaded, even if the landlord did his best to prevent, accident. That the landlord took the risk of accident upon himself at all hazards.

3. Same—When landlord deemed a wrong-doer.

Where a landlord invades the tenants possession and destroys his property, the landlord is deemed a wrong-doer, and his liability is absolute.

4, Same—Damages—What proximate.

The damages which resulted from the fire kindled by the fires in the. building displaced by the fall, were properly chargeable to the defendant. They directly resulted from the act .of the agent in removing the supports, etc.

Appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury at the Kings county circuit and from an order denying a motion for a new trial on exceptions on the ground that the verdict was against the weight-of evidence.

The action is to recover as damages caused by the alleged negligence of the defendant, the loss, by fire, on plaintiffs’ goods, which were burned on May 5, 1885, in a building of. which the defendant was the owner.

p. 611

The contention of the plaintiffs is that the fire was caused by the falling of the building, that the fall was caused by the negligence of George L. Abbott, in making certain additions and repairs to the foundation piers of the building, and that Abbott, in making the repairs, was the defendant’s agent.

The_ contention of the defense is, that there was, as to the material points of fact, no open question to go to the jury; that the evidence showed, beyond any reasonable doubt, that Abbott was not the defendant’s agent in making the additions and repairs; that the building was in the occupation of Abbott, and in his possession and control; that Abbott was not negligent; that even if he was negligent, no negligence of his caused the fall; and that, even if his negligence caused the fall, the fire that in fact resulted could not at the time have been foreseen, by any man of only ordinary knowledge and prudence, as the ordinary and natural result of any negligence established by the evi-t dence.

Stickney & Shepard, for app’lt; Richards & Heald, for resp’ts.

The first question which - the evidence presents is as to the real relations of the defendant to the building, which he is averred to have thrown down by his negligence. The leading facts are few. The defendant’s sister holds a mortgage upon it and this was foreclosed and the property was bought at the referee’s sale by the defendant. The owner of the property before the foreclosure was S. M. Houghton, and her husband managed the property for her. The property, after the referee’s deed to the defendant, was managed by a son of S. M. Houghton, who was allowed $500 a year for his services, and after deducting expenses and his salary the balance was paid to the defendant regularly. The property was insured in the name of the defendant and was assessed to him.

Houghton, senior, suggested to the defendant to increase the rent earning power of the property, and large additions were made, and then the elder Houghton was put in charge of the same at a salary of $400 a month. Nothing beyond this was ever retained by Houghton. There was an oral understanding that the defendant would reconvey to Houghton if certain conditions were complied with, which never were performed. This arrangement with the elder Houghton continued to Houghton’s death in 1882. After this George L. Abbott was put in charge of the property by defendant at $300 per month. He had married the elder Houghton’s daughter, and Abbott was in charge at the time at the accident, and made the

p. 612

repairs which caused the same. The defendant testifies that he bought the property to secure the estate of his brother, Hayward Cushing. Under this evidence there is no ground for the claim that the Houghtons had any, even the least, interest in the property or that they, or either of them, were in possession of it, as tenants or otherwise. The sole connection with it was upon a salary for services rendered the owners, and a stated settlement with him for the entire receipts, after deducting expenses and costs of collecting. The defendant in his pleadings claims that he is a trustee for another interest entirely. Under this claim he was the owner and holds the legal title, and could sell it as owner with a liability to account to those who were entitled under the distribution of that estate. Lochran v. Reilly, 95 N. Y., 64 .

It follows from this that the defendant is responsible for any omission of proper care in respect to the property which is provable against the agent. If, under the defendant’s answer an issue could be made that the Houghton family, or some of them, were in the actual possession under a verbal promise of future sale, the finding of the jury is conclusive upon the question. The remaining question is whether there was any negligence proven. The facts are quite undisputed. The building had settled. Abbott, with a view to remedy this, employed men to shore up the girders, which were supported on piers, and upon the girders so supported the floor timbers rested. All the stories were shored up. The masons in the lower story built up the piers to the proper level. While the men were engaged in removing the timbers in the story over the cellar, the whole building came down. There were five sections which held this story, and two were taken down on Mon - day, and the remaining three on Tuesday. The removal of the sections was made by the express order of the agent, Abbott. It is difficult to tell from the evidence precisely what part gave way first. The plan was wholly under Abbott’s directions, although different parts of it were performed by those whom he employed. As I view the case it is for a tort. Although the agent had the right to repair and even raise the floors, if thereby he forcibly dispossessed the plaintiffs and destroyed their property, he would not.be excused if he cannot be proven guilty of any negligent act in doing the work. The plaintiff’s rights could not be invaded, even if the landlord did his best to prevent accidents. He took the risk of accidents upon himself at all hazards.

If the action solely rests upon the proof of neglect, the case fails under that class of cases where the accident itself is proof of neglect, if -unexplained. Buildings can be safely

p. 613

raised, and they are commonly so raised. This accident could not have happened, except by some mistake or omission, and the cause of it should have been shown by the defendant. Seybolt v. N. Y., L. E., etc., R. R., 95 N. Y., 562 .

If the case depended upon proof of some omission of the agent himself, the evidence sustains the finding. Great weight was put upon newly laid brick work too soon, in the opinion of experts. The manner in which the westerly pier of the building was supplemented by a pier on each side of it to support two small girders in place of a rotten part of the old girder, seems to be an extremely objectionable method with so heavy a- building.

It is useless in the view of the case taken to discuss the question of negligence. The liability is absolute because the landlord invaded the plaintiff’s possession and destroyed his property, and must be deemed a wrongdoer.

The damages which resulted from the fire kindled by the fires in the building displaced by the fall were properly chargeable to the defendant. They directly resulted from the act done. Lowry v. Manhattan Co., 99 N. Y., 158 .

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.