Willard Bartlett, J.:
By the verdict in this case the defendant corporation has been held to be chargeable with negligence, in allowing poison ivy to grow upon the grave of the plaintiff’s husband, in Cypress Hills Cemetery, so that the plaintiff was severely poisoned by such ivy in June, 1895, while she was engaged about the grave in planting flowers. The evidence that the plaintiff’s sufferings were actually ' caused by ivy poisoning was rather meagre. The physician whom she consulted at the time testified that he treated her but once for the trouble of which she complained, which was an inflammation of the skin; and that while whatever he told her was right, he had no recollection at the trial in -regard to what he did say to her. He [282]*282presumed lie prescribed the usual remedies for poison ivy,-but could not tell what he prescribed. The case, he said, did not attract much attention on his part. “ I remember Mrs. George coming into my office one summer morning with her face considerably swollen,” he testified, “ and that is all that I recall. It was swollen, reddened and sensitive to the extent of all skin-inflammations to produce that state of affairs. It might be attributable to ivy poison.” This is supplemented by the testimony of the plaintiff herself that the doctor told her she was poisoned with ivy; and in view of the fact that poison -ivy. was found growing on her husband’s grave two months later, I am inclined to think that there is enough in the record to sustain the finding of the jury in this respect, though I should be much better satisfied if the proof were stronger on this, branch of the ease.
The grave of the plaintiff’s husband is situated in a part of Cypress Hills Cemetery known as Locust Grove. The superintendent describes it as the public ground in which persons buy graves for twelve dollars each. According to his testimony the cemetery does not own the soil, the purchasers buy the graves out and out, and they have jurisdiction themselves over the grave.” In this view of the legal relation of the parties, the witness was in error, as it appears that the plaintiff received a mere ticket of interment. The position of the plaintiff, as the purchaser of the grave,.was analogous to that of the owner of a church pew. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503.) She had acquired the right to use it for a certain purpose and the right of access to it, under such rules and regulations as the corporation was empowered by law to establish. Among other things, ,the statute authorizes such a corporation as the defendant “ to regulate the introduction and growth of plants, trees and shrubs, within the cemetery grounds.” (Laws of 1874, chap. 245, § 4.) In. the so-called public ground, where this grave was, the corporation only mows and cleans up “ the whole ground all over, including the ground between the graves,” once or twice a season as occasion requires, and nothing more is done there except to 'particular graves which the association is specially paid to care for.
Having regard to the control which the law gave to the corpora>tion, and which it actually exerted within the limits of the cemetery, [283]*283I think its officers and agents were bound to exercise reasonable care not to permit the introduction into the lots, or upon or about the graves, of anything which they knew or ought to have known would constitute an unusual source of danger to persons lawfully visiting such lots or graves. Whether poison ivy comes within this class of perils may be doubted ; but assuming that it does, I am unable to agree with the conclusion reached by Mr. Justice Woodward that, the proof in the present case is sufficient to establish a failure on the. part of the corporation to fulfill its legal obligation in respect to it. I question very much whether the courts can take judicial notice, of the dangerous properties of qioison ivy. There does not seem to be entire harmony of view among botanical authorities in regard to the liability of persons to be injuriously affected by it. The fact is tolerably familiar that it is extremely poisonous to some persons and wholly harmless to others; but what proportion of those who touch it are thereby poisoned does not appear to be even approximately known. Where the facts are so indefinitely ascertained the courts can hardly take judicial notice of a matter, but. must act upon the proof with regard to it in each particular case.
Assuming, however, that the defendant’s representatives in the management of the cemetery knew that poison ivy was likely to be, harmful to a considerable proportion of the persons who might be unfortunate enough to touch it, the extent of their duty, as it seems to me, was measured by the obligation to exercise reasonable care to prevent the presence of the plant about or among the graves.' The corporation certainly was not an insurer against its appearance in places where it might do injury. The association was only bound to do what an ordinarily prudent person would do to avert danger from this source. There is no suggestion that the corporation was' cultivating poison ivy in the cemetery. There is no evidence of actual notice to the association that poison ivy was growing on the grave of the plaintiff’s husband until after the visit at which she says she was poisoned. ISTor do I think that the proof is sufficiently strong to charge the defendant with constructive notice that it was. there. The superintendent admitted that there was some poison ivy in the unimproved part of the cemetery, but that appears to be a. wholly different locality,‘where it could do no harm to visitors.. Another witness said he had been poisoned .by poison ivy in this. [284]*284same cemetery in 1891, at a spot which he designated as lot 232, on Stony-path, but there is nothing to show -that this is in the samé part of the grounds as the grave of the plaintiff’s husband, or anywhere near it. In August, 189o, two months.after the alleged poisoning of the plaintiff, a florist visited her husband’s- grave at the instance of her attorney, and he testified that he found poison ivy on and about the grave. “ It ran on the grave from the walk way,” he said.“It would probably take two or three months to have the growth that I saw it have on the grave.” This witness could not express an opinion that, the ivy which he found there might not have grown' since June, so that there really is no proof in the case from which it can fairly be inferred that the ivy which poisoned the plaintiff had been there long enough to justify us in holding that the association, in the exercise of reasonable care, was bound to know of its presence in that part of the cemetery.
I am of the opinion,- therefore; that no liability -should be imputed to the defendant upon the - facts' disclosed by this record. I concur fully, however, with the conclusion of Mr. Justice Woodward, that -the defendant cannot be held exempt from responsibility for the negligence of its agents and servants on the ground that it is a char- ■ itable corporation, and in the reasoning by winch he reaches that result. The .difficulty that I find with the judgment here is that the defendant is not shown to have violated the rule of reasonable • -care, which I think is all the law imposed upon it.
The courts' should be extremely 'cautious, it seems to me, not to lay down any new rule or. enlarge any old one' so as to extend the liability of those who own-or Control land, for the presence of poisonous plants upon their property. So far as I know, poison ivy (rhus toxicodendron.) and poison sumach (rhus venenata)
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Willard Bartlett, J.:
By the verdict in this case the defendant corporation has been held to be chargeable with negligence, in allowing poison ivy to grow upon the grave of the plaintiff’s husband, in Cypress Hills Cemetery, so that the plaintiff was severely poisoned by such ivy in June, 1895, while she was engaged about the grave in planting flowers. The evidence that the plaintiff’s sufferings were actually ' caused by ivy poisoning was rather meagre. The physician whom she consulted at the time testified that he treated her but once for the trouble of which she complained, which was an inflammation of the skin; and that while whatever he told her was right, he had no recollection at the trial in -regard to what he did say to her. He [282]*282presumed lie prescribed the usual remedies for poison ivy,-but could not tell what he prescribed. The case, he said, did not attract much attention on his part. “ I remember Mrs. George coming into my office one summer morning with her face considerably swollen,” he testified, “ and that is all that I recall. It was swollen, reddened and sensitive to the extent of all skin-inflammations to produce that state of affairs. It might be attributable to ivy poison.” This is supplemented by the testimony of the plaintiff herself that the doctor told her she was poisoned with ivy; and in view of the fact that poison -ivy. was found growing on her husband’s grave two months later, I am inclined to think that there is enough in the record to sustain the finding of the jury in this respect, though I should be much better satisfied if the proof were stronger on this, branch of the ease.
The grave of the plaintiff’s husband is situated in a part of Cypress Hills Cemetery known as Locust Grove. The superintendent describes it as the public ground in which persons buy graves for twelve dollars each. According to his testimony the cemetery does not own the soil, the purchasers buy the graves out and out, and they have jurisdiction themselves over the grave.” In this view of the legal relation of the parties, the witness was in error, as it appears that the plaintiff received a mere ticket of interment. The position of the plaintiff, as the purchaser of the grave,.was analogous to that of the owner of a church pew. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503.) She had acquired the right to use it for a certain purpose and the right of access to it, under such rules and regulations as the corporation was empowered by law to establish. Among other things, ,the statute authorizes such a corporation as the defendant “ to regulate the introduction and growth of plants, trees and shrubs, within the cemetery grounds.” (Laws of 1874, chap. 245, § 4.) In. the so-called public ground, where this grave was, the corporation only mows and cleans up “ the whole ground all over, including the ground between the graves,” once or twice a season as occasion requires, and nothing more is done there except to 'particular graves which the association is specially paid to care for.
Having regard to the control which the law gave to the corpora>tion, and which it actually exerted within the limits of the cemetery, [283]*283I think its officers and agents were bound to exercise reasonable care not to permit the introduction into the lots, or upon or about the graves, of anything which they knew or ought to have known would constitute an unusual source of danger to persons lawfully visiting such lots or graves. Whether poison ivy comes within this class of perils may be doubted ; but assuming that it does, I am unable to agree with the conclusion reached by Mr. Justice Woodward that, the proof in the present case is sufficient to establish a failure on the. part of the corporation to fulfill its legal obligation in respect to it. I question very much whether the courts can take judicial notice, of the dangerous properties of qioison ivy. There does not seem to be entire harmony of view among botanical authorities in regard to the liability of persons to be injuriously affected by it. The fact is tolerably familiar that it is extremely poisonous to some persons and wholly harmless to others; but what proportion of those who touch it are thereby poisoned does not appear to be even approximately known. Where the facts are so indefinitely ascertained the courts can hardly take judicial notice of a matter, but. must act upon the proof with regard to it in each particular case.
Assuming, however, that the defendant’s representatives in the management of the cemetery knew that poison ivy was likely to be, harmful to a considerable proportion of the persons who might be unfortunate enough to touch it, the extent of their duty, as it seems to me, was measured by the obligation to exercise reasonable care to prevent the presence of the plant about or among the graves.' The corporation certainly was not an insurer against its appearance in places where it might do injury. The association was only bound to do what an ordinarily prudent person would do to avert danger from this source. There is no suggestion that the corporation was' cultivating poison ivy in the cemetery. There is no evidence of actual notice to the association that poison ivy was growing on the grave of the plaintiff’s husband until after the visit at which she says she was poisoned. ISTor do I think that the proof is sufficiently strong to charge the defendant with constructive notice that it was. there. The superintendent admitted that there was some poison ivy in the unimproved part of the cemetery, but that appears to be a. wholly different locality,‘where it could do no harm to visitors.. Another witness said he had been poisoned .by poison ivy in this. [284]*284same cemetery in 1891, at a spot which he designated as lot 232, on Stony-path, but there is nothing to show -that this is in the samé part of the grounds as the grave of the plaintiff’s husband, or anywhere near it. In August, 189o, two months.after the alleged poisoning of the plaintiff, a florist visited her husband’s- grave at the instance of her attorney, and he testified that he found poison ivy on and about the grave. “ It ran on the grave from the walk way,” he said.“It would probably take two or three months to have the growth that I saw it have on the grave.” This witness could not express an opinion that, the ivy which he found there might not have grown' since June, so that there really is no proof in the case from which it can fairly be inferred that the ivy which poisoned the plaintiff had been there long enough to justify us in holding that the association, in the exercise of reasonable care, was bound to know of its presence in that part of the cemetery.
I am of the opinion,- therefore; that no liability -should be imputed to the defendant upon the - facts' disclosed by this record. I concur fully, however, with the conclusion of Mr. Justice Woodward, that -the defendant cannot be held exempt from responsibility for the negligence of its agents and servants on the ground that it is a char- ■ itable corporation, and in the reasoning by winch he reaches that result. The .difficulty that I find with the judgment here is that the defendant is not shown to have violated the rule of reasonable • -care, which I think is all the law imposed upon it.
The courts' should be extremely 'cautious, it seems to me, not to lay down any new rule or. enlarge any old one' so as to extend the liability of those who own-or Control land, for the presence of poisonous plants upon their property. So far as I know, poison ivy (rhus toxicodendron.) and poison sumach (rhus venenata) are the only common plants in the eastern United States which are poisonous to..the touch. Poison sumach grows chiefly in swampy places where its inaccessibility prevents persons from approaching it with anything like the frequency with which they -may. encounter poison ivy. The latter is one of the commonest forms of vegetation to be met with in this part of the State. It abounds in the second judicial district, and in Rockland county in the autumn the stone walls for miles in the country around the court house are clothed with poison ivy, and to some extent beautified by the colors of the foliage. [285]*285The plant may be found along the roadside in nearly all the rural parts of the Greater New York. If the traveler .on the highway is to have a right of action against the municipality because it leaves this shrub there to poison his legs, or an action against the farmer for allowing poison ivy to grow on a wall which the wayfarer leans against in taking his noonday rest, a novel and interesting, not to say onerous, class of negligence suits will speedily be developed.
I am in favor of a reversal of this judgment.
Cullen, J., concurred; Woodward and Hatch, JJ., dissented.
Goodrich, P. J.:
I do not find inyself in accord with the views expressed by Mr. Justice Woodward. The first subject to be decided is the relation of the parties to each other and the liability springing therefrom. There is no deed of the burial plot set out in the record. The plaintiff testified: “ My husband was buried in 1891 in the public ground. I purchased the grave there. * * * I never paid the cemetery anything for taking care of the grave. I paid a dollar for sodding the grave and a dollar for sodding my daughter’s also.”
During the examination of the plaintiff the court asked the defendant’s counsel, “ What is your claim, that they (the grave owners) had to take care of their graves ? ” and the counsel answered “ that they had to at that part of the cemetery.” “ Q. (By plaintiff’s counsel) Were any weeds growing about the grave, from;other graves or around about that extended to your grave? [Objected to as immaterial and irrelevant. Objection overruled and exception.] A. It was weeds all over. The Court: That does not answer the question. Strike it out. He is asking you now whether anything growing on other graves extended, over on this grave of your husband. [Objected to. Objection overruled and exception.] A. Yes, sir. * * * I saw shrubs, vines and other kinds of foliage growing about the other graves which extended towards my grave, -x- -x- -x- They were growing over on my grave and I brushed them aside for the purpose of planting my own .plants.”
Mr. Butt, the superintendent of the cemetery, testified: “It (plaintiff’s lot) is located in the part of the cemetery known as Locust Grove. It is in the public ground ; some people buy single graves there, for which they pay the sum of twelve dollars. * * * [286]*286The cemetery does not own the soil; the purchasers buy the graves out and out, and. they have jurisdiction themselves over the grave. They buy about 7x2 or 2$, and about 6 feet in depth. We give them a receipt for the purchase of the grave. * * * In the case of Mrs. George there was no. agreement about compensation for the caring and maintenance of the grave on the part of the cemetery. By the Court: Q. Don’t you do anything about caring for these grounds at all, your cemetery association? A. Yes, sir. On the public ground we mow there once or twice a season, as the occasion requires; we mow the whole ground all over, including the ground between the graves and clean it- all up; that is all we do unless we are paid specially to take care of an individual grave. There are some lot owners that hire us to look after particular graves in that special way, for which, they pay the cemetery.”
The plaintiff,' being recalled, testified : “ I never had any conversation with Mr. Butt, the witness for the defendant, about the care of this lot. I never paid, him any money. I gave a dollar for having the grave sodded.”
The “ ticket of interment ” and the “ receipt,” which were offered in evidence, afford no light on the subject, except that the latter contains the following: “ Cemetery charges $12.00,” and “ Received Payment, J. T. Runcie Q for Superintendent.”
At the close of the plaintiff’s case the defendant moved for a’non-■suit, and renewed the motion at the close of the whole evidence, on the ground, among others, that it appeared “ that the. defendant had -not agreed to take any charge or care of the grave ; all that it did do was to sod it. So that it was no fault on the part of the defendant if poison ivy was growing there.” The motion was denied, and the defendant excepted.
The defendant asked the court to charge “ that there is no evidence tending to show any fault or neglect on the part of the defendant,” and the court said : “ That I decline to charge, and leave it for the jury to determine as a question of fact whether there is or not.” Thus the question is fairly presented to us : What is the duty •of a cemetery association to persons whose dead are buried in its grounds and who have purchased either a burial.lot or a right of interment, in respect to keeping out dangerous plants of wild growth ■irom the surface of .the graves ?:
[287]*287The liability, if any, must arise out of negligence in performing some duty which the defendant owed to the plaintiff. There is in the case at bar no duty arising- out of any express covenant. Defendant’s liability can only be derived from proof that the defendant neglected some duty to the plaintiff as a “ proprietor ” (so called in one of the exhibits). But I am wholly unable to find any authority by statute or at common law, imposing on the defendant the duty of exterminating all deleterious vegetable growths from its incl'osure. It may surely be stated that there is no duty resulting from any contract other than such as may be implied by the selling of a right to burial or to a burial plot in any cemetery. There is ho covenant to keep the plot in order, and I cannot see any duty on the part of the defendant to keep out of it all deleterious natural growths. Indeed, the evidence expressly shows that the defendant undertook no such duty. The fact that it mowed the grass twice a year cannot be deemed to impose upon it the further duty of keeping out poisonous vegetable growths.
It is true that the plaintiff was not a trespasser,'but was of right upon the premises. It may- be conceded that she was not a “ mere licensee,” but was an “ invited person,” to whom the owner of land clearly owes a greater duty than to a “ mere licensee.”
The United States Supreme Court in the leading case of Bennett v. Railroad Company (102 U. S. 577) adopts the statement of Mr. Cooley, in his admirable work on Torts, where he says that when one “expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” ' (*604-*607.) - In this case the defendant had left open hatch holes into one of which the plaintiff, a passenger going to a train of the defendant, fell and received injuries from which on demurrer the court held the defendant responsible, as the “ demurrer concedes that the company was well aware, as' well of the condition of the hatch holes in the depot floor as that such condition was unsafe and dangerous to the traveling public.”
But in the case at bar there is no evidence that the defendant either knew of the existence of the poison ivy at or upon the grave [288]*288in question, or was under any contract duty to remove it, nor any evidence of any failure to use ordinary care in the maintenance of its grounds. .It may even be conceded that, if there had been evidence that the defendant had notice of the presence of the ivy at the grave, it .was bound to' take measures for its removal, but there is no such evidence. There is evidence that another person was poisoned by ivy upon some other grave in the cemetery four years before the present case, but there is no evidence.that this fact was brought home to the plaintiff. In this connection it may not be undesirable to notice the fact that in the cases cited by Mr. Justice Woodward Crowhurst v. Amersham Burial Board, L. R. [4 Ex. Div.] 5; Fletcher v. Rylands, L. R. [1 Ex.] 279 ; Wilson v. Newberry, L. R. [7 Q. B.] 31) the acts complained of were, in a sense, acts of commission, as the planting, of yew trees, and not negligent omission of some duty.
We may by way of analogy also resort to the liability of a landlord to a tenant, which was the subject' of investigation in Sutton v. Temple (12 M. & W. 52), where the defendant “ took the eatage' of a field ” from .the plaintiff, called in the written memorandum “ twenty-four a,cres of eddish,” at a stipulated rent. The defendant turned in his cattle to feed, and several died from poison from a heap of manure which lay open in the field and in which were large quantities of refuse paint. There were found also, scattered all over the land, minute particles of old paint which had been spread with the manure before the lease. The defendant, surrendered the premises and refused to pay the rent, and the action was commenced for its recovery, but. she was held liable. Lord Abinger, C. B., of the Court of Exchequer, said: “The action is brought for the fulfillment of a certain contract applicable to land, viz., for the eddish or eatage of a field — that is, the use of the herbage to be eaten by cattle — for a certain time. * *' * It is not suggested that the plaintiff (the landlord) had the least knowledge of the cause of this injury when she let the land. Now, it is said that there was, under these circumstances, an implied warranty on the part of the plaintiff, that the eatage was wholesome food for cattle. But I take the rule of law to be, that if a person contract for the use and occupation of land for a specified time, and at a specified rent, he is bound by that bargain, even though he took it for a particular [289]*289purpose, and that purpose be not attained.” In the same volume is the' case of Hart v. Windsor (12 M. & W. 68), where it was also held that there is no implied warranty on a lease of a house or of land, that it is or shall be reasonably tit for habitation, occupation or cultivation, and that there is no contract, still less a condition implied by law, on the demise of real property only,-that it is fit for the purpose for which it is let.
If the defendant had set “ a snare,” as the Court of Appeals said in Beck v. Carter (68 N. Y. 283), or if the defendant had set up a dangerous instrument like a spring gun or a man trap,, it w.ould, undoubtedly, be liable for damages resulting to a person lawfully on the ground; but this is very different from holding the defendant bound to keep the premises free from a natural vegetable growth which is common over the whole country, and does not injuriously and alike affect all persons. The evidence shows that some are injured by it and some are not. There is no evidence in the record of any general knowledge of the dangerous character of poison ivy, and I do not think that we should resort to citations from scientific books to assist us in holding the defendant liable for the plaintiff’s injuries, when the evidence shows that it is not uniformly dangerous to all persons who come in contact with it. Inasmuch, however, as Mr. Justice Woodward has referred to such publications, it may hot be amiss to say that I find good scientific authority as to the fact that poison ivy is not uniformly injurious.
Appleton's Encyclopaedia says: “ The juice and effluvium frpm the plant exert a poisonous influence to which many persons are extremely sensitive, while others are not at all affected, even by chewing the plant.”
The Century Dictionary says: “ It poisons many persons, either by contact or by its effluvium, causing a serious cutaneous eruption with intense smarting and itching.”
According to these authorities, not all persons are injuriously affected by the plant; but, in order to affirm this judgment, we must be prepared to hold that the defendant was under obligation to remove and eradicate a natural vegetable growth common to all parts of the country, and which, as the evidence shows without contradiction, can be destroyed only with the greatest difficulty, is of rapid growth, [290]*290and not dangerous to all persons, but only to such as have some idior syncrasy which renders them peculiarly liable to its deleterious influence. If the defendant was bound to this duty, I cannot see why -a similar duty does not attach to the public authorities in their control -of a public place or highway. Can it be said that they are bound to destroy poison ivy which has crept into the fences or walls over all portions of the public domain, lest, perchance, some passer-by shall touch, the ivy and receive injury \
I cannot feel called upon to extend the doctrine of negligence to the length which an affirmance of this judgment requires. It would certainly be anew growth upon the accepted-doctrine of negligence, quite as dangerous as the plant under consideration. I prefer that the court of final resort shall assume a responsibility so grave and far-reaching in its results.
Neither can it be said that the defendant is liable as for the maintenance of a nuisance. Cooley on Torts (*601), cited in Bennett v. Railroad Co. (supra), under the chapter on nuisances, says : “ The liability in any such case must spring from negligence, and, therefore, if the injury arises from some danger not known to the owner, and not open to observation, he is not responsible, because he is not in fault.” And *611: “ A party who comes into possession of lands as grantee or lessee, with a nuisance already existing upon it, is not, in general, liable for the continuance of the nuisance until his attention has been called to it, and he has been requested to abate it. ‘ This rule is very reasonable. The purchaser of property might be subjected to very great injustice if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion.’ ”
There is no evidence of any such, notice to or knowledge ón the part of the defendant; and if the condition of the premises made it a nuisance that condition should have been proved to have been brought to the knowledge of the defendant, or evidence given sufficient to amount to constructive notice, before any recovery can be had in this action. On the contrary, the superintendent of the cemetery testified that neither he nor the defendant corporation had any notice or knowledge that there was any poison ivy on the grave in question, while the evidence shows that the plant spreads very, rapidly. And it may be observed that as soon as this action was. [291]*291commenced, which was on October second, he made a careful examination and found the grave clear of the plant.
The evidence, moreover, is not satisfactory to my mind that the plaintiff’s injuries resulted, to the extent sworn to, from poison ivy on the defendant’s premises. The plaintiff and her physician are at variance as to their evidence on the subject of his attendance and other matters, and I have very serious doubts whether the verdict ought not to be set aside as against the weight of evidence.