Thompson v. New York & Harlem Railroad

1 Thomp. & Cook 411

• Court: New York Supreme Court
• Decided: September 15, 1873
• Status: Published

Opinion

Barnard, P. J.

We think the court erred in declining to charge, that a compliance by'the defendants with the statute as to fences,exonerated them from liability, irrespective of the covenant in the deed from Cornwall to the defendants. By that covenant the defendants undertook to build “ good and sufficient fences ” on both sides of the land adjoining the plaintiff, and to make good, sufficient and convenient crossing places, * * * “pursuant to the acts of the legislature in relation thereto.”

The undertaking is to make the fences as required by law. If the clause referring to the legislative acts is to be held to apply only to cattle guards, still the instruction asked for was proper. The company agreed to build good and sufficient fences. The law provides what fences a railroad company shall erect; namely, of the height and strength of a division fence as required by law.

In the absence of an agreement calling for a particular fence, the performance of the statute is the performance of the covenant, and the jury should have been so instructed.

The judgment should be reversed and a new trial granted, costs to abide event.

Judgment reversed and new trial granted.