Green agt. Van Buskirk.

ing creditor over a transfer made in another state, which is the domicil of the owner of the property, says: "No one can seriously doubt that it is competent for any state to adopt such a rule in its own legislation, since it has perfect jurisdiction over all property, personal as well as real, within its territorial limits. Nor can such a rule, made for the benefit of innocent purchasers and creditors, be deemed justly open to the reproach of being founded in a narrow or a selfish policy." (Story on Con. of Laws, § 390.) Again, he says: "every nation, having a right to dispose of all the property actually situated within it, has (as has been often. said) a right to protect itself and its citizens against the inequalities of foreign laws, which are injurious to their interests."

Chancellor KENT, in commenting on a kindred subject, namely, the law of contracts, remarks: "But on this subject of conflicting laws, it may be generally observed, that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that where the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land." (2 Kent's Com. 599.)

In the case of Moreton agt. Milne (6 Binney, 361), the supreme court of Pennsylvania says, that "every country has a right of regulating the transfer of all personal property within its territory; but when no positive regulation exists, the owner transfers it at his pleasure."

The Louisiana court, in a leading case on this subject, gives, in the following language, a clear statement of the foundation of this principle: "The municipal laws of a country have no force beyond its territorial limits, and when another government permits these to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no injury is inflicted on her own citizens, otherwise justice would be sacrificed to comity. If a person sends his property within a jurisdiction different from that where he resides, he impliedly

Groen agt. Van Buskirk.

submits it to the rules and regulations in force in the country where he places it."

Apart from the question of authority, let us look at some of the consequences of the doctrine held by the court of New York.

If the judgment rendered against the plaintiff in error is well founded, then the sheriff who served the writ of attachment, the one who sold the property on execution, any person holding it in custody pending the attachment proceeding, the purchaser at the sale, and all who have since exercised control over it, are equally liable.

If the judgment in the state of Illinois, while it protects all such persons against a suit in that state, is no protection anywhere else, it follows that in every case where personal property has been seized under attachment, or execution against a non-resident debtor, the officer whose duty it was to seize it, and any other person having any of the relations above described to the proceeding, may be sued in any other state, and subjected to heavy damages, by reason of secret transfers, of which they could know nothing, and which were of no force in the jurisdiction where the proceedings were had, and where the property was located.

Another consequence is, that the debtor of a non-resident may be sued by garnishee process, or by foreign attachment, as it is sometimes called, and be compelled to pay the debt to some one having a demand against his creditors; but if he can be caught in some other state, he may be made to pay the debt again to some person who had an assignment of it, of which he was ignorant when he was attached.

The article of the constitution and the act of congress, relied on by the plaintiff in error, if not expressly designed for such cases as these, find in them occasions for their most beneficent operation.

We do not here decide that the proceedings in the state of Illinois have there the effect which plaintiff claims for them; because that must remain to be decided after argument, on the merits of the case. But we hold that the effect which these proceedings have there, by the law and usage

1

1

Robbins agt. Mount.

of that state, was a question necessarily decided by the New York courts, and that it was decided against the claim set up by plaintiff in error, under the constitutional provision and statute referred to, and that the case is, therefore, properly here for review.

The motion to dismiss the writ of error is overruled.

NEW YORK SUPERIOR COURT.

ALONZO F. ROBBINS AND HENRY D. SANGER agt. RICHARD E. MOUNT, JR., CORA MOFFAT AND MYRA MOFFAT.

In an action against the executors and infant devisees, as owners of real property, for damages by reason of an injury caused by negligence, in an overflow of water from a basin or fixture constructed in the building, the executors are not liable where they took no estate in the lands, their authority being a mere naked power to receive the rents, determinable at any time, upon the appointment of guardians for the infant devisees; they neither having placed the fixture in the building, nor maintained it there; neither had they any active or passive agency in producing or contributing to the injury.

The infant devisees were not responsible by reason of any negligence by them personally, or having caused the injury by their direction or authority-no such facts appearing.

An infant is incapable in law of appointing an agent. He cannot appoint an attorney; nor sue or be sued, except by next friend or guardian. He is not liable on contract, and generally has no legal capacity to act for himself. But such legal incapacity does not exempt him from the consequences of his tortious acts. In respect to those, he is held responsible, if doli capax, when the wrong is done. But such tortious acts must be committed by the infant himself, or under his immediate view, or by his directions or authority. Being incapable of appointing an agent or servant, he cannot delegate powers to another, nor can he guarantee or insure the fidelity, care or skill of another. In the case of infants, the principles of respondeat superior, of principal and agent, and master and servant, cannot be applied.

A contract upon which an infant is not liable, cannot be turned into a tort for the purpose of charging him.

Infant devisees can neither appoint an agent of the estate, or a janitor of a building thereon; and if such appointments were made, it would impose no liability upon such devisees for any negligent act of the employees.

Where the occupant of an office in a building, has no conditions in his lease that he shall employ such janitor or persons as the landlord may select for the whole building, for the purposes of cleaning and keeping his office in order, and making fires, and such persons are employed by the occupant for such purpose, and for which he pays them, they become his agents and servants, and

Robbins agt. Mount.

for any injurious acts to others, arising from their negligence while thus employed, the landlord is not liable.

Although circumstantial evidence may be sufficient to prove a particular act of negligence, it must be of such a character as to lead directly to the conclusion that some designated person was in fault.

If the facts are such as would render an adult owner of real estate liable under a proposition that if the fixture upon such property was improperly constructed, or should not have been there at all; or if all safeguards which could possibly be placed there, should have been placed there; it seems, that such liability would also attach to infant owners.

It is doubtful whether the principle in that class of cases, which hold that owners are responsible as insurers, without regard to the question of negligence, apply to questions arising between landlord and tenant. The relation between the latter is founded on contract.

There can be no implied contract of warranty on the part of a landlord, that the building shall continue fit for the purposes for which it was demised; there being no covenant to repair. Nor an implied covenant of warranty that the premises are in a tenantable condition.

Where the fixture erected and maintained upon the premises, is not unlawful, and is not per se a nuisance; in an action for damages, for injuries caused by its use, the question of negligence becomes material.

The owner's liability then, rests upon his misfeasance in constructing an unsafe fixture, the insecurity of which caused the damage.

The negligence of the party injured, contributing to the injury, will defeat a recovery, however negligent the other party may be; so will the concurrent negligence of a tenant of another portion of the building, defeat an action against the common landlord.

If the fixture complained of, was suitable and safe, if used with care, no responsibility can rest upon the owner; and if by its negligence or careless use, it is made to cause an injury, the person guilty of such negligence must be looked to for damages.

The whole duty of owners towards their tenants is discharged, if the water fixtures in their buildings are so constructed that in their careful use, they perform the purposes of their construction. They do not warrant or insure against their negligent use, and are not liable merely because some person, for whom they are not responsible, turned a faucet, or negligently left it open.

Heard February General Term, 1867.

Before MONELL, GARVIN and McCUNN, Justices.

APPEALS from orders made at special term denying motions for a new trial.

The action was to recover damages for injury to plaintiffs' property by water. They occupied, as tenants, the first floor of the building on the north-west corner of Broadway and Worth street, in this city. The upper parts of said building were occupied as offices; one of said parts, being upon the second floor, was occupied by George Gifford, as a law office. The building was formerly owned by William

Robbins agt. Mount.

B. Moffat, who died in April, 1862, devising his real estate to the defendants Cora and Myra Moffat, then and now infants.

The defendant Mount, was appointed and qualified as executor. The only authority, if any, given by the will to the executor, over the real estate, was in the following clause: "I hereby authorize and empower my executors hereinafter named, to collect and receive the income and rents of all my real estate, for the benefit of those entitled to the same."

The plaintiffs had possession of the first floor of said building, under a lease from William B. Moffat, the devisor of the defendants Cora and Myra Moffat, dated in March, 1861, for the term of four years from May 1, 1861. The rooms occupied by Gifford, were held under a lease made in February, 1863, by Smith, the agent of the estate of said William B. Moffat, for one year from May 1st, 1863. These rooms, which were directly over the store of the plaintiffs, contained a urinal, constructed when the building was erected, for the use of those rooms. Such urinal contained a stop-cock above it, and was perforated with several holes in the bottom of the basin, for the outflowing of the water.

One Anderson, was trustee for the Moffat children, and was employed by the defendant Mount, to collect the rents. One Grevatt, was the "janitor" of the building, employed by Mr. Moffat in his lifetime, whose business was to take care of the building, clean the passages, and let the tenants in and out. He was employed by Gifford to sweep and dust his office, and had a key to the door opening from the hall. He slept at the head of the stairs, on the floor where Gifford's office was.

Grevatt testified, that on the night of the 9th of April, 1864, he was up until after twelve o'clock. The next day, which was Sunday, between one and two o'clock in the afternoon, he heard the running of water in Gifford's room; went there and saw the water flowing over the basin of the urinal. There was a small stream running through the stopcock. He shut off the water, and took out of the urinal at