Stevenson v. Buxton.

when he accepted the agreement; that the agreement was entered into with the expectation that the defendant would be able to purchase the premises and procure a title, but he had not been able to do so.

On the trial at special term it appeared, and was conceded, that the defendant never had title, and was not then, and never had been, able to convey, yet, notwithstanding the objection of the defendant, the court made a compulsory reference to a referee to ascertain and report the damages which it was adjudged the plaintiff was entitled to recover for the non-fulfillment of the agreement by the defendant. The defendant objected not only to the order of reference, but also to the proceeding before the referee; but the referee proceeded, and made his report, upon which judgment was entered against the defendant for $1125.96, and costs.

We think, when it appeared or was conceded on the trial, that the defendant was not then and never had been able specifically to perform, that the justice at special term should have declined to proceed with the trial, and should have sent the action to the circuit for trial.

The defendant had a right to have the question of damages tried by a jury; of which right the justice at special term could not deprive him by a compulsory reference; particularly as the fact, that the defendant never had title, and was not and never had been able to specifically perform was set up in the answer, and the truth of which may be said to have been an issue in the cause.

The judgment should be reversed with costs.

[NEW YORK GENERAL TERM, November 4, 1861. Clerke, Sutherland and Barnard, Justices.]

The statute of 6 Anne, ch. 3, as altered and re-enacted by 14 Geo. III., which provides that no action, suit or process shall be had against any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall accidentally begin, nor shall any recompense be made by such person for any damage done thereby, is a part of the common law of New York, having been introduced into the colony by the colonists, and not having since expired, or been repealed or altered.

Where a lessor, having at least an implied license to go into a chamber of the demised tenement, with a lighted candle, after property he is allowed to keep there, thus enters, and soon after, the house takes fire and is consumed, with its contents, no action will lie against the lessor, by the tenant, to recover the value of his goods destroyed, without proof of negligence or carelessness on the part of the lessor, causing the fire.

There can be no presumption, in such a case, that the lessor did not exercise ordinary care. The presumption, without proof to the contrary, is that he did use ordinary care.

HIS was an appeal from a judgment of the Madison county

THIS

court, affirming the judgment of a justice of the peace. The action was commenced in a justice's court. The complaint alleged that the plaintiff, in the year 1858, rented a house of the defendant, in the town of Cazenovia, and placed his household furniture in it; that the defendant afterwards entered the house, in the absence of the plaintiff and his family, and through the negligence and carelessness of the defendant the house took fire, and the plaintiff's furniture therein was burned, to his damage, &c. The defendant, by his answer, denied all the allegations in the complaint. The action was tried before the justice without a jury. The proof showed that the defendant owned a farm, on which the house was situated. The plaintiff hired the house of the defendant for one year, from April 1, 1858. The house, and some of the plaintiff's furniture, which was not got out, were burned, in the daytime, in August, 1858, when the plaintiff and his family were all absent. The defendant cultivated the land, and kept some things in the chamber over the wing, or woodhouse, and went into the chamber "once in a while," to the knowledge of the plaintiff, and without objection.

122a 123

Lansing v. Stone.

The plaintiff was examined as a witness, and testified that the defendant did not reserve the chamber, but had the privilege of leaving some irons there. The defendant testified. that by the contract of leasing he was to have the privilege of keeping things in the chamber; and kept things there, such as ox-bows, staples, &c. The plaintiff testified that the defendant said, after the fire, "it was all his doings, the house burning; that he had been into the chamber, in the daytime, previous, with a lighted candle." Palmer Freeborn testified that the defendant said "he had been up in the chamber to look for an iron of some description; that he had a candle there; and that he thought it (the house) must have taken fire from the candle." Another witness testified that the defendant said "he must have set it (the house) afire from his candle; that he went into the chamber with a lighted candle, and he thought it (the fire) must have taken from that." The defendant testified that he had been in the habit of going into the chamber with a lighted candle, after such things as he kept there, and kept a candle there, to light and go in with. That on the day of the fire, soon after the plaintiff went away, at about 10 A. M., he went into the chamber, with a lighted candle, to get a part of a staple to an ox-yoke. That he first sent his son for it, who came back without it. The defendant testified, in substance, that he was careful, so as not to set any thing on fire with the candle, and that he put it out when he left.

That he was

from 80 to 100 rods from the house, on the farm, when he first saw the house was on fire. That the smoke was then coming out of the roof of the upright part of the house. That he and his son ran to the house, got water and went into the chamber where he had been with the candle, and "there was no fire there." That there was fire in the garret. The defendant's son was not sworn, on the trial. Walter Ainsworth testified that when he first saw the fire it was pretty much over the roof of the upright part, and that "the roof over the wing was not on fire any." The defendant got some

Lansing v. Stone.

of the plaintiff's furniture out of the house, and tried as hard as he could to get the whole of it out, and to put out the fire. 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; but he supposed his fire went down while he and his family were at breakfast, and he also supposed it was not built up again. The plaintiff asked the defendant if he had not previously had the house insured, which the justice excluded as immaterial. The plaintiff offered to prove that after the fire the defendant received the insurance money; which evidence was also excluded by the justice. The plaintiff recovered a judgment against the defendant for $40 damages, besides costs, which was affirmed by the Madison county court.

D. W. Cameron, for the appellant.

H. C. & R. L. Miner, for the respondent.

By the Court, BALCOM, P. J. It is proper, in this case, to refer to the law touching the liability of a person for damage a fire does to the building or other property of another, that accidentally begins in his own house or other building. I mean a fire that happens by reason of the negligence of the owner of the house or other building in which it begins, or the negligence of his servant, and burns the house or other property of a neighbor.

Blackstone stated the law, in his time, as follows: "If a servant kept his master's fire negligently, so that his neighbor's house was burned down thereby, an action lay against the master; because this negligence happened in his sevice; otherwise, if the servant going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must answer the damage personally. But now the common law is, in the former case, altered by statute, (6 Anne, 3,) which ordains that no action VOL. XXXVII.

2

Lansing v. Stone.

shall be maintained against any in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servant's carelessness." (1 Black. Com. 431.) The above mentioned act was re-enacted by statute, (14 Geo. III.,) which provided that "no action, suit or process whatever shall be had against any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall, after the 24th day of June, 1774, accidentally begin; nor shall any recompense be made by such person for any damage thereby, any law, usage or custom to the contrary notwithstanding."

I think the statute of Anne, above mentioned, as altered by that of 14 Geo. III. I have quoted, is a part of the com_mon law of this state, notwithstanding the remarks, arguendo, of Judge Denio in Althorf v. Wolfe, (22 N. Y. Rep. 366.) In Bogardus v. Trinity Church, (4 Paige, 178,) Chancellor Walworth said: "The common law of the mother country as modified by positive enactments, together with the statute laws which were in force at the time of the emigration of the colonists, became in fact the common law, rather than the common and statute law, of the colony. The statute law of the mother country, therefore, when introduced into the colony of New York, by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of the province." Chancellor Kent says: "It is also the established doctrine that English statutes passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country." (1 Kent's Com. 4th ed. 472. See 19 N. Y. Rep. 73.) By section 17 of article 1 of the existing constitution of the state, such parts of the common law, and of the acts of the legislature of the colony of New York as together did form the law of the said colony on the 19th day of April, one thousand seven hundred and seventyfive, are in force, which have not since expired, or been re