Ahern v. . Steele , 115 N.Y. 203 ( 1889 )

I cannot concur in the judgment about to be pronounced in this case. It appears that on the 8th of October, 1882, the plaintiff's intestate, while lawfully upon the easterly half of the pier or wharf known as No. 54, in the city of New York, fell through its flooring into the East river and was drowned. The plaintiff, as administrator, brought this action for damages to the next of kin on account of his death. Issue was joined by the defendants and brought to trial before a jury. At the close of the plaintiff's case it was made clear, from admissions in the answer, that the defendants were owners of that part of the pier where the accident happened, and by evidence that it was in a defective condition in 1879, and thenceforward until it gave way; and the jury also found, upon sufficient evidence, that the intestate did not, by any negligence on his part, contribute to the injury. Upon that state of the case the defendants were clearly liable upon the principle of the maxim: "Sic utere tuout alienum non lædas." There was no error, therefore, in denying their motion for a dismissal of the complaint, and the exception thereto was without merit.

It is claimed, however, by the appellants that their relation to the property was so controlled by circumstances afterwards disclosed by way of defense, as to relieve them from liability. At the close of the plaintiff's case the defendants went into evidence, and not controverting the ownership of the pier, its condition, or the plaintiff's injury, they showed that James Gardner, being the former owner of the pier, devised it with other property in fee to certain persons in trust that they should, during the lives of the testator's children, "in the first place, out of the rents, issues and profits thereof," uphold, support, amend and repair "the same with all needful and necessary amendments, repairs and alterations, and, next, distribute the residue among his children, and, after their death, among their issue, to whom was also devised in fee the remainder;" that the estate was subsequently divided, and the pier in question, among other pieces of real estate, "fell to Jane, the testator's daughter, and her issue, viz.: Mrs. Hutton and Mrs. Steele, the defendants herein. The original trustees having died, McCarty was appointed by the court trustee in their place, of that portion of the property which fell to Jane and her heirs, and he, as such trustee, on the 1st of May, 1880, executed to one Phelan a lease for that part of the pier already referred to, for the term of five years, at an annual rent of $750 for three years and $850 for the other two years, but reserving to "the party of the first part (the lessor), or his agent, the right to enter the premises for the purpose of making repairs, if he should see fit to make them." "But," it continued, "the party of the first part shall not be obliged to repair the premises," and by its terms the lessor was to be exempt from all liability to the tenant by reason of their non-repair, either then or in the future, and no obligation was imposed upon the tenant to keep them in order or in repair. McCarty continued to act as trustee until the death of Jane, the surviving daughter of the testator, which took place May 22, 1881, whereupon suit was at once commenced by Mrs. Steele for partition of the premises which had been set apart to her mother and her issue, and in that action an order was made July 29, 1881, by which one Brown was appointed receiver "of the rents, issues and profits that have accrued since May 1, 1881, of the lands and premises described in the complaint in that action and which were set apart to Jane De Dion, deceased, in severalty and her issue." Upon these facts, the learned counsel asked the court to direct a verdict for the defendants on the grounds:

First. "Because this property was leased by Thomas McCarty, trustee, on the first day of May, 1880, for five years, and that the trustee then held the legal title to the property; that Jane De Dion, the life tenant, was living until May, 1881, a year and one month after the lease was made, and the defendant owners took the pier at that time, subject to the lease, and at no time have had any notice of the defective condition of the pier.

Second. "That the defendant owners cannot be charged with the condition of the pier at the time of the accident, because at that time it was leased to the defendant Phelan, and it was his duty to repair it; and in the absence of notice of the defective condition of the pier to the defendant owners the duty to repair, on their part, never arose."

Third. "Because the defendant owners did not become owners of the pier until after the death of the life-tenant in May, 1881, and took it at that time, subject to a lease to run for five years from May 1, 1880, to May 1, 1885, and there is no proof in the case that they had any knowledge or notice of the defective condition of the pier."

The motion was denied. The defendants then called Brown, the receiver, and proved that he had acted as such as to the rents until June, 1887; that at the time of his appointment, and for some time after, McCarty was insane; that Mrs. Hutton resided in France and Mrs. Steele in England; that Phelan occupied the full term of his lease. They also proved an order of the court made on the 5th of November, 1881, upon the petition of Mrs. Steele and Mrs. Hutton, by which the receiver was directed to reserve out of the receipts by him as such receiver, and set apart quarterly and each and every quarter a specified sum "to be applied by him to the payment of the taxes, insurance, necessary repairs, Croton water tax and other incidental necessary expenses, commissions, etc. And that he pay the remainder of such receipts each and every quarter, as the same shall accrue, to Rosalie M. Steele, or her attorney in fact, and to Henrietta Hutton, or her attorney in fact, and Fanny McCarty, as committee for Thomas McCarty, in equal proportions."

It was then proven by defendants that on the 4th of October, 1884, the plaintiff in this case applied to the court for leave to sue Brown, the receiver, upon the cause set out in the complaint in this action, and that the motion was denied. The defendant's counsel thereupon renewed his motion that the court direct a verdict for the defendant on the further ground that "at the time the accident happened there was a receiver in control of the property, appointed by the court, collecting the rents, issues and profits, and that under the order of the court he had been directed to make necessary repairs to the premises." The learned trial judge declined to do so, and his rulings have been sustained by the General Term. I agree with that court in the conclusion that no error was committed by the trial judge.

It is obvious that the supposed exemption from liability, so far as the condition of the premises and the relations created by the devise and lease are concerned, was at the trial put by the defendants' counsel upon the absence of notice to the defendants of the defective condition of the pier. The lack of that notice or knowledge form the ground of the first three propositions submitted to the trial judge, and that point is now presented with great earnestness in support of this appeal. The validity of the lease is assumed by both parties. It derives its efficacy from the devisor (Greason v. Keteltas, 17 N.Y. 491), and as he created the power to execute, the lease must be construed as emanating from him; it would otherwise be without force or authority. In contemplation of law, therefore, so far as the lease follows the power, the devisor is to be regarded as the lessor and the estate of the lessee as having precedence over other estates or interests created by the testator (Isherwood v. Oldknow, 3 Maule S. 382), and the rent payable to the trustee so long as his estate continued, and after that to such other person as by the terms of the will should be entitled to it, viz., issue of the children of the testator, and they are the defendants in this action.

The will of Gardner, as we have seen, makes it the duty of the trustees mentioned in it to keep the premises in repair and, as the first object of the trust required them, to apply all the rents and profits if needful to that purpose. This duty devolved upon McCarty as their successor. If we assume that he could shift that duty to another, he has not done so. If from the mere act of leasing such effect could be implied, it could only be where the right to the possession of the premises had been wholly transferred to the tenant, so that an entry by the lessor or landlord would be a trespass. The lease in this case has not that effect; the right of entry, and so the right to the possession of the pier for the purpose of repairs, never passed from the lessor, and the reservation is as broad as the duty imposed by the will. It is true it is to enter if the lessor shall see fit to make repairs but it must be deemed that he intended such repairs, as the will directed, and to have in view those indicated by the testator, viz., "all necessary repairs." The reservation shows that the lessor deemed himself bound to provide for them, and that he intended to do so. Such is the effect of the provision in the lease, and it, moreover, must be read as if it incorporated the directions of the will in regard to the duty of the trustee in respect to repairs. The lessor, therefore, could not avail himself of the principle which requires the tenant, and not the landlord, to make the demised structure safe for the traveler. The right to enter included the right of supervision and inspection, and, indeed, the entire control of the premises, so far as was necessary to enable him to make all necessary repairs. (Kirby v. Boylston Market Association, 14 Gray, 250.) If the accident had occurred while the trustee's estate continued, he would have been liable, not only because the leased premises were defective when the lease was executed and the responsibility incurred as matter of law, but because he was himself bound to the duty of reparation. During that period of time these defendants would not have been liable, for they had neither the title to the property, nor its possession, nor in any capacity control over it. Their condition was like that of the defendant in People v.Townsend (3 Hill, 480). They were not responsible for the condition of the pier nor connected with its possession, for they had no estate nor interest in the land and could only enforce the execution of the trust. The trustee, on the other hand, so long as he held that office, had the title and the whole estate, subject only to the execution of the trust; and if from the condition of the property a third person was injured, it was his fault and his the responsibility. The legal estate of the trustee, however, was in him so long only as the execution of the trust required, and it then vested in the persons beneficially entitled. (1 R.S. 728, §§ 61, 62.) This occurred upon the death of the defendant's mother, and it is expressly averred by the defendants that they "then became, as owners in fee, entitled to the rents, issues and profits of the" premises in question under the lease made by the trustee. By thus accepting the estate under the devise the defendants took the place of the lessor, assumed the duty of caring for the property, and, unless the case is exceptional, in suffering it to remain in a dangerous condition they came short of their obligation, and actual notice was not material or necessary to enable the plaintiff to maintain his action. As soon as the defendants acquired the right to the possession of the pier, or to the rents, they were bound to know its condition and at once guard against the danger to which the public had been before exposed, and became liable for the consequences of having neglected to do so in the same manner as if they themselves had originated the lease and the nuisance. They were able at any time to gain possession of the premises for the purpose of repair, and this enabled them to abate the nuisance. In such a case the landlord is not exempt from liability. (Coupland v. Hardingham, 3 Camp. 398; Irwin v.Sprigg, 6 Gill. 200.)

A variety of cases have been referred to by the appellants, or brought to our attention during the consideration of this appeal, which, it is claimed, hold a different doctrine. They have no application to the facts on which the defendants are chargeable. The cases thus cited relate principally to the obstruction of private ways, or the diversion of water-courses, viz.: Beavers v. Trimmer (25 N.J. Law, 97); Pierson v.Glean (14 id. 36); Johnson v. Lewis (13 Conn. 303); Noyes v. Stillman (24 id. 15); Woodman v. Tufts (9 N.H. 88);Carleton v. Redington (21 id. 291); Snow v. Cowles (26 id. 275); McDonough v. Gilman (3 Allen, 264); Inhabitants ofOakham v. Holbrook (11 Cush. 299); People v. Townsend (3 Hill, 479); Hubbard v. Russell (24 Barb. 404); ConhoctonStone Road v. Railroad Company (51 N.Y. 573). In all of them, except McDonough v. Gilman, the structure complained of caused water to overflow and injure the plaintiff's land, and it was held that an action for continuing a nuisance could not be maintained against one who did not erect it, without showing that he had notice or knowledge of the existence of the nuisance. In most of these cases the court cite and put the decision uponPenruddock's Case (5 Coke, 1a 101.) And in more than one the rule there laid down is held to be reasonable, "because otherwise the purchaser of property on which the structure is erected might be subjected to great injustice if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion." (Johnson v. Lewis, supra; Angell on Water-courses, § 403.)

The law is no doubt so and the reason is obvious. These consequences are often such as cannot easily be known except to the party injured, and he, it is said, should be presumed to acquiesce so long as he rests in silence and does not apprise the purchaser of any cause of complaint, and the latter has, therefore, a right to suppose that the structure which he has bought was rightfully erected (Eastman v. Amoskeag Mfg. Co.,44 N.H. 143-156), and is not bound to know or suspect that before his purchase one party committed a wrong and the other submitted to it.

The cases cited also fall within the well-settled rule that one bound to do something in a certain specified event, the happening of which lies within the peculiar knowledge of the opposite party, is not in default until notice is given to him. Until then the silence of the aggrieved party is held to be evidence of a license to maintain the thing causing injury. Nearly all of them are noted in Conhocton Stone Road v. Buffalo, New York ErieRailroad Company (supra), and that case stands on the same reason. It there appeared that the B. C.R.R. Co., in 1851 or 1852, constructed an embankment and bridge as part of its road-way. The defendant became the owner of these structures upon foreclosure sale, and, in 1863, it leased the property to the Erie Railway. The structure during high-water caused an overflow to plaintiff's injury in 1864 and 1865, and for this the plaintiff recovered against the defendants' motion for a nonsuit. The judgment was reversed on the ground that proof failed to show notice or knowledge on the part of the defendant of the existence of the nuisance.

To the same effect and on similar grounds is Wenzlick v.McCotter (87 N.Y. 122), also cited by the appellant; but both cases, as well as those above referred to, involve a principle which extends only to a wrongful act done or committed in the first instance by a third party, and of which the defendant had no knowledge, and not to a neglect of duty on his part in caring for his own property. If it was the defendants' duty to maintain and put in repair the pier, no notice can be necessary to sustain an action for an injury resulting from the neglect of such duty, for whether the act causing it be one of omission or commission is immaterial. In such a case the owner is the originator of the injury, and to him the principle requiring notice does not apply. On the contrary, good sense and sound doctrine require that he who ought to abate a nuisance should answer for its continuance. Every moment that the party whose duty it is to repair fails to do so, is a new tort producing a cause of injury, and he cannot but know it to be so. Whenever, therefore, there is damage, there is a cause of action against him who by omission produces the result complained of. Such is the result of the discussion in Brown v. Cayuga Susquehanna Railroad Company (12 N.Y. 486), where the action was for overflowing the plaintiff's land. It appeared that the predecessor in interest had created the obstruction, and the defendant on that ground asked for a nonsuit. It was denied and the decision affirmed, the court holding, as matter of law, that the defendant was liable. Upon appeal the point was taken that no request to abate the nuisance was proven. JOHNSON, J., says: "If this matter be important to the rights of the parties, that ground should have been taken at the trial." DENIO, J., was of opinion that an action lay without notice, that it was not required by any authority, and that there was nothing in the nature of the case which required a notice to be given to the upholder of a nuisance as a condition to his being made responsible for its consequences. The words of that eminent jurist are quite applicable to the case in hand. "Every one," he says, "is bound so to use his own property that it shall not be the means of injury to his neighbors, and I think the proprietor should himself look to it, and that he cannot safely wait to be admonished before reforming what may be dangerous to others."

In Irvine v. Wood (51 N.Y. 224) the landlord was held liable and also the tenant for damages resulting to a wayfarer in a public street who stepped on the edge of the iron cover of a coal-hole, and it turning under his foot, his leg went in and he was injured. Wood claimed that he had no notice of the defect. The court held that it was his duty "to know its condition and he must be held to the same responsibility as if he had actually known it." So in McCarthy v. Syracuse (46 N.Y. 194), a sewer case. The defense was that the city officials had no notice that the sewer was out of repair. The court said: "The mere absence of this notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable." (See, also, White v. Board of Health, L.R., 10 Q.B. 219.)

The same principle applies here. It is in evidence, as we have seen, that the pier was in a weak and dilapidated condition when the lease was made and when the defendants became owners. From the nature of the material of which it was constructed it would, unless cared for, become weaker and more dilapidated, and consequently more dangerous to human life. Of the operation of natural causes and their effects upon such structures the defendants are presumed to have knowledge, and they could not so neglect property subject to those causes that it should for want of repair bring injury upon another without being responsible for that injury. But it is said they were non-residents or absentees. I think that is immaterial. What they were bound to know they must be deemed to have notice of, wherever they were. It was their duty to know the condition of the pier. And it is fair to presume from the single fact of proprietorship that it was known to them.

But there was not only proprietorship, there was, as we have seen, by the very terms of the lease, a right of entry and such possession as might be needful for repairs retained by the lessor. To that extent the owner was at all times in possession. And these defendants, when they became the absolute and beneficial owners of the pier, must be presumed to have known not only the situation and extent of their own interest, but the qualification made by the lease. They knew the pier was of a material liable to decay. They knew it was actually decaying; that the tenant was under no obligation to repair, and that the right to enter for the purpose of repairing was in the lessor and formed one of the conditions of their own estate. As there was in them a right of entry, there was also a right of occupation which the tenant could not abridge.

It is true that, until the death of Mrs. De Dion, the defendants were reversioners, but they were not passive reversioners. They became owners of the property May 22, 1881, and in July, 1881, through proceedings instituted by themselves as owners of the property, they procured the appointment of Brown as receiver of the rent, and in November, 1881, obtained the order (supra) for its distribution, and actually received the rent. Thus they voluntarily went into the place of the ancestor and devisor, accepted the property with its emoluments, and the information which induced them to do so necessarily included its condition and so charged them with the burden which its care required. The neglect of this duty, the suffering the pier to fall into such a state of decay as to become dangerous to those lawfully coming upon it, was the creation of a nuisance. Doubtless, the original landlord would have been liable (Swords v. Edgar, 59 N.Y. 28), but the defendants, his assignees, are equally so. (Rex v. Pedly, 1 Ad. El. 827; Salmon v.Bensley, Ryan M. 414.) They maintained and continued it. InRex v. Pedly the court says: "If a nuisance be created and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance."

Notwithstanding the validity of the lease, and its continuance for the full term is not questioned by the plaintiff, the general rule enunciated in this citation holds good, although we need not, and do not, go so far as to say that such would be the case if the defendants had no opportunity of removing the nuisance. That feature is not in the case. When a landlord is exempt from liability on account of the bad condition of his premises, it is because the tenant is in possession, and the owner has no right to enter upon them; but where he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to third persons. (Clark v. Fry, 8 Ohio St. 359;Ellis v. Sheffield, 2 El. Bl. 767; Swords v. Edgar,supra; Kirby v. Boylston Association, supra.) And in this case the defendants had not by implication only, but, as we have seen, by the express terms of the lease, a right to enter upon the premises and abate the nuisance. This doctrine is enforced with much elaboration in Edwards v. New York and Harlem RailroadCompany (98 N.Y. 245), and is fully recognized in the still later case of Wolf v. Kilpatrick (101 id. 146), to both of which my attention has been called. The whole argument of the prevailing opinion in the Edwards case is based upon the assumption that the landlord had no right to enter the building for the purpose of making any changes or alterations, or to strengthen or support the galleries (the place of accident) "in any way." and the contention that he should go free from the consequences of the imperfect structure was put precisely upon the ground that a contrary rule, one which would place such responsibility "upon a grantor or upon a landlord, while out of possession, and deprived of the control of his premises," would lead to injustice, and the argument is sustained by reference to cases where the like fact appeared, viz.: Mellen v. Morrill (126 Mass. 545), where it is said, "There is nothing to show that he (the owner) retained any control over the walk," the place of accident.

In the Wolf Case (supra), the distinction is again drawn between the liability of a landlord who has parted with all his right to enter upon the demised premises and one who retains control, and the judgment was reversed because it established liability on the part of the landlords "who were out of possession and control." It cannot be said that either the lessor or these defendants had no control over the premises and "no opportunity of removing the nuisance," and as they could abate it, and did not, they are liable for its continuance. Moreover, the law casts upon the owner the duty of obeying the obligation which he retained. It did not devolve upon the tenant under the lease to make repairs, and it is said in Wood's Landlord and Tenant (618), that "where a nuisance results from such want of repair, and there is no covenant to repair on the part of either the landlord or tenant, an action may be maintained against either of them therefor." It is not material whether this duty is imposed by the principles of the common law or by statute.

In Bellows v. Sackett (15 Barb. 96) the objection was made that the action should have been against the tenant in possession, and not the landlord; but it was held that to make the objection available, it should be shown that the tenant was bound to make repairs; it was not to be presumed, and JOHNSON, J., says, "however that may be, I am inclined to the opinion that, in any event, the plaintiff may resort directly to the owner as the one who keeps up and maintains the erection which causes the injury, whoever may be the temporary occupant under him."

It is very difficult to so read the lease as not to perceive a recognition by both lessee and lessor of the defective condition of the premises, their tendency to become worse, a mutual reluctance on either side to assume the burden, but resulting finally in the reservation by the lessor of a right to enter and make repairs, should "he see fit to do so." It would be most unreasonable, therefore, not to hold him responsible for injuries resulting from apparent defects, or defects known to him, or that would have been known if he had exercised ordinary care. If repairs were necessary he was bound "to see fit" to make them.

The same liability devolves upon the defendants as assignors from the devisor. They take the benefit of the lease and under it are bound by its obligations, whether expressed in terms or incorporated by implication from the will.

As to the plaintiff's intestate, it was not optional whether the owners should make those necessary repairs or not. They were required to do so because of the maxim already adverted to, and which furnishes the reason for a remedy in case of nuisance. The intestate was as lawfully on the pier as if on a highway which he had the right to travel and use, and the owner of the pier comes directly within the rule which requires a party to protect a structure upon his own premises which is dangerous to others rightfully there. It was, therefore, a duty on the part of the owner to put the pier in a safe condition. (Beck v.Carter, 68 N.Y. 283.) This rule applies to the appellants, as owners at the time of the accident. They were not nominal owners only. They availed themselves of their title by receiving rent and acting in control of the premises. In Inhabitants of Oakham (supra), it was claimed that a dam broke away because of its original insufficiency and subsequent want of repair, and carried away the plaintiff's bridges. The defendant was held not to be responsible, the court saying: "Such liability attaches only to a party who transfers an estate with the original wrong, or who receives rent or other consideration for its continuance" (Roswell v. Prior, Salk. 460; Rex v. Pedly, 1 Ad. El. 822); but, say the court, the defendant did nothing of the kind. He was himself never in possession of the estate. He did not demise it; he received no rent and never claimed that the Messrs. Dexter (the persons actually in possession) were his tenants. He did nothing to vindicate or affirm his own title against theirs. * * * If the title was in him, he was not obliged to assert it; if he considered the burden attached to the estate greater than its benefits, he was not obliged to assume it." The defense succeeded, therefore, because the defendant neither built nor occupied the premises, nor by any bargain or act of his own authorized any other person to occupy them. Here the defendant's case is quite otherwise. They maintained the terms of the lease. They recognized the tenant as their tenant, not only technically, but in a substantial manner and by affirmative proceedings.

They took the entire estate, and if they took subject to the lease, it was because they chose to do so. The rent was incident to the reversion and followed it. The defendants, therefore, were put at once to their election to reject the devise or assume the title and treat the person then in possession under the lease as a tenant. By undertaking the control and receiving rent they made their election. They became his landlord and he their tenant. They come, therefore, within the general rule that the receipt of rent is an upholding and continuing of the nuisance. (Gandy v.Jubber, 5 B. S. 78; Todd v. Flight, 9 C.B. [N.S.] 377;Swords v. Edgar, supra.)

Nor is it any answer that a receiver had been appointed of the rents and issues of this property, or that the court refused to direct an action to be brought against him. His duties were specific, and it does not appear that the injuries complained of resulted from his negligence, default or misconduct, or that the plaintiff had any claim against the fund or property in his hands, but, in any aspect, it was in the discretion of the court which appointed him to take cognizance of the receiver's liability, if any, and determine it, or permit the aggrieved party to sue at law. Its decision cannot affect the present litigation. The receiver merely represented the owners of the pier, or those entitled to the rents and profits, and because, on their application, he was directed to pay a portion of the receipts upon necessary repairs, it in no respect exonerates the owners or those who would otherwise be liable for their own neglect. He had no exclusive power, nor was that the character of the jurisdiction of the court. As to the question involved, his official position was no better screen for the defendants than would have been that of a common agent selected by the parties without the interposition of the court. The property was leased. The receiver was directed to receive the rents, with a portion repair the property, and do certain other things respecting it, and divide the residue. He had neither possession of nor control over it. This action interferes with no act or duty on his part.

The case of Metz v. Buffalo, C., etc., Railroad Company (58 N.Y. 61), cited by the appellant, was that of a corporation over whom, against its will, a receiver in bankruptcy had been appointed, and a distinction in its favor is taken by the court upon that ground. GROVER, J., says: "It must be borne in mind that the defendant was not a voluntary bankrupt. The appointment of a receiver was against its will. It had nothing to do with his appointment." By the act of the law its possession was taken from it and given to others. And they, by negligent running of the road, caused the injury complained of. Here it is otherwise. The appointment was at the request of the defendants, and it was their business to see that the property did not become a nuisance. They could not shift the responsibility. In the case of the Mayor v. Bailey (2 Denio, 433), it was held that the owner of real estate was responsible for the negligence of water commissioners, although appointed by public authority to make erections upon it, but upon the ground that they acted at the instance and for the benefit of the corporation, the city was held liable. It would be unreasonable to deprive an injured party of his remedy because, at the request of the owner of property, a receiver of its rents had been appointed with power to apply a part of those rents to repairs. It is to be noticed that the whole annual rent of the pier was $750; of this (assuming distribution to be made) one-fourth only, or less than $200, could be applied by the receiver to repairs. By what rule of law or justice is it that an owner of property, by pledging part of his income, can reserve to himself the rest free from the claims of his creditors or those who, through his neglect of duty, involuntarily become entitled to compensation at his hands. Could the owners of this pier, by depositing a portion of its rents and directing their application to repairs, rid themselves of liability to expend other moneys, and more if necessary, to that purpose? Yet they have done nothing else. Owning much property, including the pier in question, they say to the court: "We are seeking, through you, to divide these estates, but, in the meantime, we need the income wholly or in part for our maintenance; let the receiver set apart so much as at the end of the year shall be sufficient for taxes, insurance, necessary repairs, etc., and pay us the balance every quarter. The court yields to their request. The receiver does not make the repairs, whether for want of money or otherwise does not appear, and so a life is lost. Is it an answer to a claim for indemnity that some money was set apart in the hands of an agent to make repairs? Suppose the money was not enough, or the agent or receiver was unmindful of its just expenditure, is the claimant to bear the burden of its insufficiency, or of his neglect? Where has it ever been held that anything less than the whole estate of a man was liable in such a case, or that proceedings for indemnity should be inrem, or against the rents issuing from the nuisance? Suppose the whole income had been retained by the court on the application of the owners of the property, and still the accident happened, would not the representatives of the party injured be entitled to redress from other property belonging to the same person? Surely he would. If the damages were payable only from the rents and the receiver had all the rents, the case might be different. The owner is responsible for the consequences of his omissions, and whether they are his own or his agent's, and although the agent is called a receiver, so far as the interests of third parties are concerned, they must always be considered as the omissions of the owner. No court can bind a person not before it. The plaintiffs suffer from a tort committed by the defendants; and from the obligation so incurred, they should be relieved only by making compensation to the extent of the damage. They could neither before its commission or after avoid it by setting apart, even by permission of the court, a certain proportion of their estate. No court has that power, nor can it endow its receiver with such a function. It did not attempt to do so. It permitted the application of certain money. It did not even profess to relieve the owner from responsibility for the condition of the pier. Nor was the receiver appointed for the purpose of keeping parties injured from the prosecution of their rights. It has already been seen that the intestate was lawfully on the pier as a public place. A duty rested somewhere to keep it reasonably safe and secure for him. Primarily that duty rests upon the owners. In this instance it is true that they became such as devisees, but they were not bound to accept the gift. Before doing so they must be deemed to have ascertained its quality and determined whether, under all the circumstances, it was worth the taking. Among these circumstances was the decayed and dangerous condition of the pier, and the lease with its reservations, limitations and restrictions.

They succeeded to the burden as well as to the advantages of ownership. Under the lease the lessor and his successors in interest remained charged as to third persons with the duty of repair. They had the right to enter for repairs, and so were bound to make them. They cannot be relieved from its performance by the undertaking of another party, although that undertaking is sanctioned by the court, that he will apply a portion or all the money received under the lease for that purpose. Neither the plaintiff nor the injured person was a party to such agreement or order, and the obligation of the receiver in that respect is a matter solely between him and the appellants, and cannot relieve the latter from their liability to third parties.

The case states that the defendants' counsel excepts "to that part of the charge in which the court says that the owners — the defendants in this case — are liable if the pier was defective at the time the lease was made."

The part of the charge to which attention is directed is, I suppose, the following: "If you believe this pier was out of condition at the time the lease was made, and that it continued so up to the time of the accident, the defendants are liable. Having succeeded, upon the death of Mrs. De Dion, to the ownership of the premises, they are absolutely freed from any trust which may have vested in Mr. McCarty, her trustee."

The charge as given was correct and justified upon the principle which led to the decision in Swords v. Edgar (supra); and the rule there declared that if "at the time of the demise and delivery or possession to the lessee, it is in a defective and unsafe condition, and in consequence thereof, while in the possession of the lessee, an injury happens to one lawfully thereon, the lessor, who is receiving a benefit by way of rent or otherwise, is liable."

It involved not only a defective condition of the pier at the time of the demise, but a condition causing an injury, or, as the trial judge said, "a condition which continued up to the time of the accident." For this condition the defendants, as owners, were responsible, and neither their absence from the state nor the intervention of a lease or a receiver could protect them against the claim of one suffering from it.

The judgment of the court below should, therefore, be affirmed, with costs.

ANDREWS, FINCH and PECKHAM, JJ., concur with EARL, J.; RUGER, Ch. J., and GRAY, J., concur with DANFORTH, J., dissenting.

Judgment reversed.