By the court, Monell, J.
William B. Moffat, by his will, devised his real estate to his two infant daughters, the defendants Cora and Myra Moffat. The devise was in fee simple absolute, without condition or limitation. Upon the death of the testator, the devisees became seized, as tenants in common, and entitled to the rents and profits. Until the appointment of guardians of them estates (2 B. ‘8. 150, §§ 3, [30]*3010; Vail agt. Vail, i, Paige, 317; Bradley agt. Amidon, 10 Id. 235), the duty of collecting and receiving such rents and profits was imposed by the will upon the executors. But the executors took no estate whatever in the lands, their authority being a mere naked power to receive the rents, determinable at any time upon the appointment of guardians. (Gases supra.)
The action, therefore, was not maintainable against the defendant Mount as owner, in either of the aspects in which the case was given to the jury. He neither placed the fixture in the building, nor maintained it there. Nor does he seem, from the evidence, to have been the active or passive agent producing or contributing to the injury. The owner of real property may be liable for defective construction of his buildings or their appurtenances, without any immediate or active agency in the injury; but such liability is confined to the owner, and does not extend to agents, employees or servants of the owner.
There was no error, therefore, in dismissing the complaint as to the defendant Mount, and the order denying a motion for a new trial as to him should be affirmed.
The case against the infant defendants was put to the jury upon two grounds : First. If the overflow was caused by the negligence of the defendants, they were liable; and, Second. If the fixture was improperly constructed, or shoidd not have been there at all, or if all the safeguards that could possibly have been placed there were not placed there, and the fixture was unsafe, the defendants were liable,
p Upon the first proposition, it was not pretended that any act of negligence by the defendants in person, or by then direction or authority, caused the injury; but it was claimed that the rule of respondeat superior applied, and that they l^are responsible for the negligence of their agents.
H this case depended upon ordinary principles applicable to principal and agent, or master and servant, and there was any evidence of negligence, it was proper to submit’such question to the jury. A person capable in law of being a principal or master, renders himself liable for the want of [31]*31still or care of his agent or servant, the relation between such persons being upon the principle of agency. (Story on Agency, § 308; Facit per alium,facit per se.) An infant, however, is incapable in law of appointing an agent (Story on Agency, § 6). He cannot appoint an attorney (2 It. S. 446, § 2), nor sue, or be sued, except by next friend or guardian (Code, § 115). He cannot hold a civil office (1 B. S. 116, § 1; People agt. Dean, 3 Wend. 438), is not hable on contract, and generally has no legal capacity to act for himself. Such legal incapacity, however, does not exempt him from the consequences of his tortious acts. In res he is held responsible, if doli capax when the i himself, or under his immediate view, or by hie _______ authority. As he cannot create an agency, he' cannoi appoint a servant, and, therefore, cannot delegate powers fb /But such tortious acts must be committed J--X ^ ' O IT a another; nor can he guarantee or insure the fidelity, care i or skill of'such other. ' \
The foundation-of the rule respondeat superior is, that the j principal holds out his agent as competent and skillful, and/ fit to be trusted, and thus in effect warrants his fidelity and/ good conduct in ah matters within the scope of the agency.!
An infant being incapable of contracting, cannot warrani the competency or skill or care of a person with whom the relation of agent cannot exist. To apply the rule, therefore,^ there must be an agency, and the act must be within the'' scope of the agency; if not, the principal is not liable (Paley Ag. 298). So, if the act be willful, the principal will not be responsible, unless it be within the general scope of authority (Weed agt. Panama R. R. Co. 17 N. Y. R. 362). All these rules-necessarily include both the right and power to constitute the relation of master and servant. Such relation exists only in contract, and requires the same capacity in the contracting parties as in the formation of any other agreement. If either is incapable of contracting, there is no mutuality, and neither is bound (Cooke agt. Oxley, 3 T. R. 653).
The result of this review of the principles of agency is, [32]*32that the liability of principals for the negligence or other misconduct of their agents arises from the express or implied authority of the latter and the implied guaranty of the former, and has its foundation in the contract which creates the relation, and by which it is implied that persons shall not suffer by the negligence of those he employs (Beeves’ Bom. Bel. 3 ed. 519).
In the case of infants, these principles cannot be applied. He cannot in law become a master, or be responsible as a master for the negligence or want of skill of his servant.
In England he cannot be an innkeeper, so as to be charged on the custom of the realm for negligence. (Bac. Abr. tit. Infancy, e.) Nor can he be a trespasser by prior or subsequent assent, but only for Ms own act. (Go. Lit. 180, h. n. 4.) He is not responsible even for his own act, if it occurs through his unskillfullness and want of knowledge, discretion or judgment (Campbell agt. Stokes, 2 Wend. 144), and a contract upon which he is not liable, cannot be turned into a tort, for the purpose of charging him. (Jennings agt. Rundell, 8 T. R. 335; Munger agt. Hess, 28 Barb. 75.)
The defendants in this case, could not appoint either Anderson as agent of the estate, or Grevatt as janitor of the building. Such appointments, had they been made, would have imposed no liability upon the defendants for any negligent act of the employees.
But there is no evidence that either the agent or the janitor, received his appointment from the defendants. Anderson collected the rent for Mr. Mount, the executor, and Gre-. vatt, the janitor, was continued in service by the estate.
The case, therefore, fails entirely in connecting the defendants with any person, for whose unlawful act they can be 'held responsible. The only person suspected of having let the water on (either the janitor or the woman employed by . him),.was not the agent or servant of the defendants.
But furthermore, if they were the agents of the defendants, their authority did not extend over Gifford’s apartments. Grevatt testified, that he was employed to take a general superintendence of the house, to see that the halls [33]*33were kept clean, and the outer door closed. He was employed by the occupants of rooms to clean and make fires. Gifford employed him, and he had access to Gifford’s office, by his authority and consent.
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By the court, Monell, J.
William B. Moffat, by his will, devised his real estate to his two infant daughters, the defendants Cora and Myra Moffat. The devise was in fee simple absolute, without condition or limitation. Upon the death of the testator, the devisees became seized, as tenants in common, and entitled to the rents and profits. Until the appointment of guardians of them estates (2 B. ‘8. 150, §§ 3, [30]*3010; Vail agt. Vail, i, Paige, 317; Bradley agt. Amidon, 10 Id. 235), the duty of collecting and receiving such rents and profits was imposed by the will upon the executors. But the executors took no estate whatever in the lands, their authority being a mere naked power to receive the rents, determinable at any time upon the appointment of guardians. (Gases supra.)
The action, therefore, was not maintainable against the defendant Mount as owner, in either of the aspects in which the case was given to the jury. He neither placed the fixture in the building, nor maintained it there. Nor does he seem, from the evidence, to have been the active or passive agent producing or contributing to the injury. The owner of real property may be liable for defective construction of his buildings or their appurtenances, without any immediate or active agency in the injury; but such liability is confined to the owner, and does not extend to agents, employees or servants of the owner.
There was no error, therefore, in dismissing the complaint as to the defendant Mount, and the order denying a motion for a new trial as to him should be affirmed.
The case against the infant defendants was put to the jury upon two grounds : First. If the overflow was caused by the negligence of the defendants, they were liable; and, Second. If the fixture was improperly constructed, or shoidd not have been there at all, or if all the safeguards that could possibly have been placed there were not placed there, and the fixture was unsafe, the defendants were liable,
p Upon the first proposition, it was not pretended that any act of negligence by the defendants in person, or by then direction or authority, caused the injury; but it was claimed that the rule of respondeat superior applied, and that they l^are responsible for the negligence of their agents.
H this case depended upon ordinary principles applicable to principal and agent, or master and servant, and there was any evidence of negligence, it was proper to submit’such question to the jury. A person capable in law of being a principal or master, renders himself liable for the want of [31]*31still or care of his agent or servant, the relation between such persons being upon the principle of agency. (Story on Agency, § 308; Facit per alium,facit per se.) An infant, however, is incapable in law of appointing an agent (Story on Agency, § 6). He cannot appoint an attorney (2 It. S. 446, § 2), nor sue, or be sued, except by next friend or guardian (Code, § 115). He cannot hold a civil office (1 B. S. 116, § 1; People agt. Dean, 3 Wend. 438), is not hable on contract, and generally has no legal capacity to act for himself. Such legal incapacity, however, does not exempt him from the consequences of his tortious acts. In res he is held responsible, if doli capax when the i himself, or under his immediate view, or by hie _______ authority. As he cannot create an agency, he' cannoi appoint a servant, and, therefore, cannot delegate powers fb /But such tortious acts must be committed J--X ^ ' O IT a another; nor can he guarantee or insure the fidelity, care i or skill of'such other. ' \
The foundation-of the rule respondeat superior is, that the j principal holds out his agent as competent and skillful, and/ fit to be trusted, and thus in effect warrants his fidelity and/ good conduct in ah matters within the scope of the agency.!
An infant being incapable of contracting, cannot warrani the competency or skill or care of a person with whom the relation of agent cannot exist. To apply the rule, therefore,^ there must be an agency, and the act must be within the'' scope of the agency; if not, the principal is not liable (Paley Ag. 298). So, if the act be willful, the principal will not be responsible, unless it be within the general scope of authority (Weed agt. Panama R. R. Co. 17 N. Y. R. 362). All these rules-necessarily include both the right and power to constitute the relation of master and servant. Such relation exists only in contract, and requires the same capacity in the contracting parties as in the formation of any other agreement. If either is incapable of contracting, there is no mutuality, and neither is bound (Cooke agt. Oxley, 3 T. R. 653).
The result of this review of the principles of agency is, [32]*32that the liability of principals for the negligence or other misconduct of their agents arises from the express or implied authority of the latter and the implied guaranty of the former, and has its foundation in the contract which creates the relation, and by which it is implied that persons shall not suffer by the negligence of those he employs (Beeves’ Bom. Bel. 3 ed. 519).
In the case of infants, these principles cannot be applied. He cannot in law become a master, or be responsible as a master for the negligence or want of skill of his servant.
In England he cannot be an innkeeper, so as to be charged on the custom of the realm for negligence. (Bac. Abr. tit. Infancy, e.) Nor can he be a trespasser by prior or subsequent assent, but only for Ms own act. (Go. Lit. 180, h. n. 4.) He is not responsible even for his own act, if it occurs through his unskillfullness and want of knowledge, discretion or judgment (Campbell agt. Stokes, 2 Wend. 144), and a contract upon which he is not liable, cannot be turned into a tort, for the purpose of charging him. (Jennings agt. Rundell, 8 T. R. 335; Munger agt. Hess, 28 Barb. 75.)
The defendants in this case, could not appoint either Anderson as agent of the estate, or Grevatt as janitor of the building. Such appointments, had they been made, would have imposed no liability upon the defendants for any negligent act of the employees.
But there is no evidence that either the agent or the janitor, received his appointment from the defendants. Anderson collected the rent for Mr. Mount, the executor, and Gre-. vatt, the janitor, was continued in service by the estate.
The case, therefore, fails entirely in connecting the defendants with any person, for whose unlawful act they can be 'held responsible. The only person suspected of having let the water on (either the janitor or the woman employed by . him),.was not the agent or servant of the defendants.
But furthermore, if they were the agents of the defendants, their authority did not extend over Gifford’s apartments. Grevatt testified, that he was employed to take a general superintendence of the house, to see that the halls [33]*33were kept clean, and the outer door closed. He was employed by the occupants of rooms to clean and make fires. Gifford employed him, and he had access to Gifford’s office, by his authority and consent. There was no condition in Gifford’s lease that he should employ such persons as the landlord might select, and Grevatt, therefore, by virtue of his employment, became the servant of Gifford. The services of the janitor, according to all the evidence, was confined, as respected the landlord, to the halls and outer door of the building. For any services in the apartments of tenants, he was employed and paid by them.
The evidence, therefore, coupled the person, whom the jury, it seems, inferred had produced or contributed to the injury, with Gifford, and not with the defendants.
But more than this. .1 think the evidence of negligence was not sufficient to go to the jury.
The burden of proof was on the plaintiffs, and although circumstantial evidence may be sufficient (Holbrook agt. Utica and Schen. R. R. Co. 12 N. Y. R. 236), it must be of such a character as to lead directly to the conclusion that some designated person was in fault. It is not pretended that the proof in this case shows or points out the person by whose neglect the water in Gifford’s office was left to flow. It was not shown whose hand turned the faucet, nor whose omitted to shut the water off. That it was the janitor or the woman, was mere supposition and conjecture. The only circumstance at all tending to such conclusion, was that the former went into Gifford’s rooms to prepare the fires for lighting, and afterwards let the woman in to clean. There was quite as much reason to suspect or conjecture that Mr. Gifford or one of his clerks, had left the faucet open. The urinal was for the exclusive use of Gifford’s offices, and the woman was directed to obtain water for cleaning from another part of the building. The pipe to which the stop-cock was attached, received its supply of water from the street main. It was proved that the water would not always rise to the faucet, owing to the lack of supply in the distributing reservoirs, and that sometimes it would not run at all. It was [34]*34•quite possible that one of Gifford’s clerks, desiring to rinse the basin, may have turned the faucet, and the water failing, left it open; and its condition would not attract attention, or excite observation. Besides, I think, the proximate cause of the overflow was as much the tobacco leaves and paper, which had negligently been thrown into the basin, as the omission to shut off the draw-cock. Some of the witnesses, especially Biggs, one of Gifford’s clerks, who examined it daily, having testified that the holes at the bottom, if unob- . strueted, were sufficient to discharge all the water from the supply pipe, even if left continually running. Biggs further testified, he was the last person who left the office, and that he examined the urinal, and it was in good order, and that the faucet was shut off. If, however, the water did not flow, and the pipe emitted no sound, the clerk’s attention would not probably be called to the condition of the faucet, and he merely said on his cross-examination, that it was in order.
It seems to me the evidence failed to designate the agent" whose act occasioned the damage, and that the jury could not conscientiously say, it was the janitor or the woman, there being evidence that it might have occurred through the fault of another person.
The second proposition of the learned justice was, that if the fixture was improperly constructed, or should not have been there at all; or if afl safeguards which could possibly be placed there, should have been placed there, and the jury believed that the urinal was unsafe, the defendants were liable.
If the facts were such as would render an adult owner liable under this proposition, I am inclined to think such liability would also attach to infant owners. The liability in either case rests, if it has a foundation at all, upon the maxim sic títere tuo, &e., and not upon any contract or obligation implied from the relation of the parties.
The principle laid down by the learned justice, follows in its scope, that class of cases where owners are held responsible as insurers, without regard to the question of negligence. (Dygert agt. Schenck, 23 Wend. 446 ; Congreve agt. [35]*35Morgan, 18 N. Y. R. 79 ; Id. 84; Davenport agt. Ruckman, 10 Id.)
¡ In all the cases cited, it was held that any use of a public highway or street for private purposes, was unlaivful, and, therefore, any obstruction placed upon it, or anything done below the surface, which rendered its use hazardous, was a public nuisance, and any person constructing or continuing such nuisance, was responsible to the public, and to individuals receiving special damage therefrom.
Those decisions were predicated upon the unlawful use of the highway by indviduals, for their private purposes, and the liability was fixed without regard to the care and skill bestowed in-erecting the obstruction. H an injury occurred, it was the fault of the individual who had caused the nuisance ; and no prudence, care or skill, or perfectness in construction or finish, or effort to render it safe, would excuse the fault. As was said in Davenport agt. Ruckman (supra), a person making openings in the highway for his private use, is an insurer of all persons who pass over the opening, however carefully protected.
I think it maybe doubted,however, whether the principle of those cases apply to questions arising between landlord and tenant. The relation between such parties, is founded on contract, and there cannot, in general, be an implication of duty or obligation, upon which a responsibility can attach. Hence, there can be no implied contract of warranty on the part of the landlord, that the building shall continue fit for the purposes for which it was demised, there being no covenant to repair, (Howard agt. Doolittle, 3 Duer, 464), nor implied covenant of warranty that the premises are in a tenantable condition. (Cleves agt. Willoughby, 7 Hill, 86.)
All analogy between the cases referred to and the one at bar, is lost in the fact that the fixture erected and maintained upon the premises was not unlawful, and was not per se a nuisance, and, therefore, the question of negligence becomes material.
The owner’s liability then, rests upon his misfeasance in [36]*36constructing an unsafe fixture in another part of the premises, the insecurity of which caused the damage.
It was not wholly a question whether the contrivance was suitable for the purpose intended, nor whether it was positively safe. Persons might differ as to both points, and there is no principle which admits a liability for a mere partial or temporary unfitness, without express negligence. But the question was, whether under all circumstances, at all times, with the aid of ordinary skill, and the exercise of ordinary car.e, the fixture was dangerous. 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 oi a tenant of another portion of the building, defeat an action against the common landlord.
The fixture complained of, was put in the building when it was erected in 1852, and had remained there without altertion, down to the accident, without injury to any one. It was constructed with a basin five inches deep in the centre, and a foot in diameter on the top, perforated with five or six holes. Above it was a supply pipe, with a stop-cock to shut off the water after using it to rinse or cleanse the basin. There was a difference among the witnesses whether the ■ holes in the bottom of the basin would discharge all the water, if the supply was kept continually running. Biggs, whose knowledge was experimental, said they would if unobstructed. Other witnesses were of opinion they would not. The construction of the fixture was criticised by several experts, some of whom objected that it did not contain an overflow, and others, that it did not contain a supplemental floor of zinc or lead in the basin, inclining towards the waste pipe. But all the witnesses agreed that if proper precaution was taken, and the stop-cock was tu/rned off, there could not he an overflow, and that am overflow could occur only hy leaving the stop-cock turned on.
Thus, according to all the evidence, the urinal was suitable, sufficient and safe, if it was used with care, and it became unsafe only if it was used without care.
[37]*37One of the requests to charge, that if the urinal and stopcock were so constructed that an overflow could not be caused except by the negligence of some person who fails to close it, the defendants would not be hable, it seems to me, was correct and eminently proper.
I have already endeavored to show that the owners were not insurers, or hable at ah events, without regard to their neghgence. If I'have succeeded, then it follows that they are hable only for neghgence, and such I understand to be, the doctrine in Eakin agt. Brown (1 E. D. Smith, 36), where Judge Woodruff says: “ If the injury result from the negligence of the owner, either in constructing or upholding the freehold, he is responsiblebut he adds, “ if it result from the neghgence of the tenant in any manner, he is hable.”
The liability of carriers of passengers, rests as well on contract as for neghgence (Weed agt. Panama R. R. Co. 17 N. Y. R. 362); and a breach of a contract may result from neghgence.
In that class of cases, the rule is strict that the carrier warrants the passengers that his vehicle is equal to the journey (Bremmer agt. Williams, 1 Carr. & P. 414), and he is bound absolutely, and irrespective of neghgence, to provide road-worthy vehicles (Alden agt. N. Y. Central R. R. Co. 26 N. Y. 102), and to adopt ah known and tested improvements for the safety of passengers.
These cases rest upon the principle that the carriers of persons are not only bound to a very high degree of caution, and should provide, as far as human care and foresight can go, for their security, but that they absolutely warrant them safe conveyance.
No such principle, however, is apphcable to persons standing in the relation occupied by the parties to this suit; nor can any case be found, which makes an owner an insurer of the sufficiency of his structures. If, then, the fixture was suitable and safe, if used with care, no responsibility can rest upon the owner ; and if by its negligent or careless use,-it is made to cause an injury, the person guilty of such negligence must be looked to for damages.
[38]*38The owner of a house is not bound to adopt all new inventions or improvements, as is required by carriers of passengers. The law does not impose such a duty. Iron pipe is now much used instead of lead pipe, as conductors in buildings, because of danger of leakage from the latter through the gnawing of rats. Bui is every landlord bound to remove. his lead pipe, and put iron pipe in its stead ? To require it would make, him absolutely warrant the safety and sufficiency of the lead pipe, without regard to any negligence in suffering it to be out of repair, or to go to decay.
I From these views, if they are correct, it follows that the whole duty of owners towards them tenants.is discharged if the water fixtures in them buildings- are so constructed that in them 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.
The submission, therefore, of any question to the jury . of a supposed unsuitableness or insufficiency of the structure, was improper.
i The evidence was uncontradicted, that it was safe if used with care ; and there being no proof that the defendants left it open, or caused it to be left open, the justice should have directed a verdict for the defendants.
The order denying their motion for a new trial, should, threfore, be reversed, and a new trial ordered as to them, with costs to the appellants to abide the event.
The order denying the plaintiffs’ motion for a new trial as to the defendant Mount, should be affirmed, with costs