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Lansing v. Stone.

pealed or altered. A similar provision was contained in our state constitutions of 1777 and 1821. The statute (14 Geo. III.) I have quoted, was in force in the colony of New York on the 19th day of April, 1775, and it has not since expired, or been repealed or altered; for it was a part of the common law of said colony, and therefore is now a part of the common law of the state. I think no repealing act of our legislature, not even that passed December 10, 1828, (2 R. S. 779,) is applicable to English or colonial statutes which were a part of the common law of New York. This conclusion is sustained by the opinions of Chancellors Walworth and Kent, which I have quoted.

I have said this much to show that if a man's house or other building takes fire by reason of his own or his servant's negligence, he is not liable for the damage the fire does by spreading and burning his neighbor's house or other property. The interest the owner of houses and other buildings has in preserving them from destruction by fire, is probably the only guaranty his neighbors have against his own or his servant's negligence in the use of that dangerous element in his own houses and other buildings. A man's loss by a fire that accidentally begins in his own house or other building and burns it, according to Blackstone, is sufficient punishment for his own or his servant's carelessness, without making him pay the damage such fire does to the property of others. And his opinion clearly is, if such a fire be caused by negligence, it is to be deemed accidental.

The defendant in this case had as great an interest in preserving his house from destruction by fire, as the plaintiff had in taking care of his household furniture so it would not be burned. If the plaintiff had been permitted to prove, as he offered to, that the defendant had the house insured before it was burned, and that he afterwards received the insurance money, the evidence would not have materially changed the case. The offer was not to prove an over-insurance; and the plaintiff did not allege or claim that the house was in

Lansing v. Stone.

tentionally set on fire by the defendant. But as the offer was rejected, its character, or that it was made at all, is of no importance.

It cannot be said that the defendant wrongfully went into the chamber, with the candle. The complaint did not charge him with wrongfully entering the house or chamber, or with wrongfully going into the latter with a lighted candle. And I think the plaintiff's own evidence shows the defendant had at least an implied license to go into the chamber with a lighted candle, at any time, after things he kept there. There can be no presumption that he did not exercise ordinary care when he went into the chamber with the lighted candle, the day the house was burned; for ordinary care is that amount of attention or diligence which men of common prudence generally bestow in the care and use of their own property, or in transacting their own business; and the presumption, without proof to the contrary, is that he was thus careful.

The declarations of the defendant, to the effect that the burning of the house and furniture was all his doing; that he had been into the chamber with a lighted candle just previous to the fire ; and that he thought the house must have taken fire from the candle, if there was no evidence to weaken their force, would not prove he was negligent or careless in the use of the candle. They only show that the fire was accidental, or, at most, that it might have been caused by the careless manner the defendant used the candle; not that it was so caused. But the force of those declarations was greatly weakened, if not entirely overcome, by the evidence of the defendant and of Ainsworth. Their statements are uncontradicted, that the fire was pretty much over the roof of the upright part of the house before the roof on the wing was on fire at all; and the defendant swore positively that he was careful with the candle; and also that after the upright part of the house was on fire he went into the chamber where he had been with the candle, and “there was no fire

Lansing v. Stone.

there.” Besides, the plaintiff testified he had a fire in the house in the morning, before he and his family left the same, the day it was burned; though he supposed his fire went down while he and his family were eating breakfast, and also supposed it was not built up again. It seems to me the evidence, when all considered together, wholly failed to show that the fire was caused by the carelessness or negligence of the defendant.

But I think the plaintiff could not recover, by reason of the common law that exempts a person from liability for damages caused by a fire that accidentally begins in his own house or other building through the carelessness or negligence of himself or his servant, and burns the house or other property of his neighbor, without showing that the fire was caused by the willful act of the defendant, or that he wrongfully entered the house or chamber with a lighted candle.

Suppose it were clear that the fire in question originated from that kept in the house by the plaintiff, I think the defendant could not recover the value of the house, in an action against him, unless he could show that the plaintiff intentionally left his fire so it would burn the house. For tenants were relieved from the liability the ancient common law imposed on them for the consequences of fires that accidentally begin in houses rented and occupied by them, by statute 6 Anne, ch. 31, $ 67, (made perpetual by 10 Anne, ch. 14,) which provides “ that no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin;" and more recently by the statute of 14 Geo. III, ch. 78, by which it is enacted that no action, suit or process whatsoever shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby. They can however make covenants that will oblige them to rebuild the buildings demised to them, if they are destroyed by fire, during the continuance of their leases. (See Woodf. Land. and

Matter of Cavanagh.

Ten. by Harrison, 434; Arch. Land. and Ten., Law Lib. 4th series, vol. 28, p. 192; 2 Platt on Leases, 187.) And as those statutes modified the common law of Great Britain, they became part of the common law of the colony of New York, and are now a part of the common law of the state. (See authorities touching this question, cited supra.) But this question, and some others I have discussed, need not be definitively passed upon in this case.

My conclusion is that the defendant rightfully went into the chamber with a lighted candle; and that the plaintiff did not show he was negligent in using the candle, at the time he went into the chamber with it. In other words, I think the evidence, when all considered together, does not establish a cause of action against the defendant. The judg

nent of the justice was therefore against evidence and law; and the county court should have reversed, instead of affirming it. It follows that this court should reverse the judgment of the county court and that of the justice, with costs.

Judgment reversed.

(BROOME GENERAL TERM, January 28, 1862. Balcom, Campbell and Parker, Justices.)

Matter of CAVANAGH and others.

Whether a partition of real property can now be effected in proceedings insti

tuted by petition? Quære. There seems so much doubt whether that form of remedy is not abolished by

the code, that the court will not compel a purchaser at a sale in proceedings for partition thus commenced, to complete his purchase.

THIS

HIS was an appeal from an order made at a special term,

directing a purchaser at a sale of premises in partition to accept a deed and pay the purchase money. George W. Cav

Matter of Cavanagh.

anagh and others presented a petition to this court under the provisions of the revised statutes (2 R. S. 317, § 1) for the partition of a lot of land with a dwelling house thereon, in the city of New York. Commissioners being appointed, to make partition, they reported that in their judgment the property was not susceptible of actual partition. An order was then made for a sale of the premises. On the sale, Timothy Donovan became the purchaser. He subsequently refused to complete the purchase, principally on the ground that under the code proceedings for partition could not be commenced by petition ; but that an action was the only form of remedy. Donovan appealed from the order.

Bogardus & Brown, for the appellant.

C. D. Miller, for the respondents.

By the Court, CLERKE, J. I think it would be contrary to that caution with which we have always acted, in relation to applications of this kind, to compel the purchaser in this case, to complete his purchase. There seems to be a considerable diversity of opinion whether a partition of real property can now be effected by a petition. According to the opinion of Mr. Justice Pratt in Croghan v. Livingston, (17 N. Y. Rep. 218; S. C., 6 Abb. Pr. Rep. 350,) this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point seems to have been carefully considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other judges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer, and more in conformity with

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