on. right of selection of an agent, and has and exercises control over him. Such does not appear to me to be the relations between Abbott and the defendant. It seems to me to be established from the testimony, the acts of the parties, and the correspondence, that the arrangement between the parties was that Houghton and Abbott were to have possession and control of the property, and to pay the defendant the net amount remaining after paying expenses, and a fixed sum for the support of the Houghton family. Under such circumstances the defendant would not be liable for negligent acts of Abbott, committed upon said premises. But if we assume that the defendant is liable for any acts committed upon these premises from which damage results, such liability must, in this action at least, rest upon negligence, for even if the defendant is guilty of a breach of the covenant of quiet enjoyment contained in the leases, in an action for such breach he could not be held liable for damage to and destruction of property, which is the action brought in this case. This action, if sustained, must be so upon the negligence of the defendant or of his agents, or some of them. The defendant himself had nothing to do with the repairs on these premises, and did not even know they were going The question then arises, was Abbott negligent? There was no positive act done by Abbott upon which negligence could be predicated. It is not questioned that he employed competent men in every branch of the work, men who had the reputation of knowing, and who did thoroughly understand, the business in which they were engaged. The work itself, although of importance, of great importance, as shown by the result, was in itself of a simple description. It was not negligence in Abbott not to employ a competent engineer or architect to superintend this work. Had such a person been employed it is impossible to suggest how anything different could have been done unless we presume that the person so employed had more special knowledge of each branch of the work than the men employed to do the same. I cannot see where negligence is established in this case, and if it is to be presumed from the mere fall of the building, I think, upon the whole evidence, such presumption is overcome. It is difficult, if not impossible, to tell with accuracy how the accident in this case happened. I do not think it happened from the crushing of the masonry, but I think it started from some one of the upper floors, and arose from their being out of level. This was not discovered by Abbott or Miller, but it does not appear to me that their failure to discover this can be attributed to them as negligence. It appears to me that the present is one of those accidents which sometimes happen which could not have been prevented by the use of that care and foresight which all men are bound to use in the conduct of their affairs." On this report judgment was entered for defendant, and plaintiff appeals. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Richards & Heald, (John E. Parsons, of counsel,) for appellant. Stickney & Shepard, (Albert Stickney, of counsel,) for respondent. VAN BRUNT, P. J. This action was brought to recover damages from the defendant by the plaintiffs, who were tenants, because of the negligence of his agents, which caused the building to fall and take fire. The referee found in favor of the defendants upon all the main issues, viz., that there was no negligence; that the defendant was not in possession, and consequently not liable for negligence, if there was any; that the fall of the building was not caused by the yieiding, giving away, or breaking of its foundations or supports; and that the fire was not a natural and proximate result arising from the fall of the building. Although it is apparent that the judgment appealed from must be reversed because of error in the admission of evidence, in view of the numerous and intricate questions involved in the determination of the rights of the parties herein, lest by not considering them we may be deemed to have acquiesced in the conclusions of the referee, it seems to be necessary to briefly consider the other questions raised upon this appeal. It was clearly error to admit the "partial history of the transactions between the defendant and S. M. & A. Houghton." This was a mere memorandum made by the defendant, made at some time, it may be after this suit was brought, setting forth his view as to the transactions between Houghton and himself, and was a mere ex parte statement, forming no part of any account or agreement. If such a memorandum is admissible, then in any case any memorandum made by a party in his own favor, at any time, must be competent evidence. It is clear that this is not so. If it be claimed that the memorandum is a denial of what might be deduced from the accounts it cannot be put in evidence even for that purpose, as the denial was not communicated to anybody, was always within the defendant's own control, to be disclosed or not, as his interest might require, and would be no more entitled to admission in evidence than would the mental resolutions of the witness which had never even found expression in words. We will now consider briefly the main issues involved. The question as to whether or not the defendant was liable under any circumstances naturally first suggests itself. By the pleadings the defendant admits that he was the owner of the premises in question, but alleges that he has no knowledge or information sufficient to form a belief as to whether, at the time of the accident, the plaintiff was a tenant in the building mentioned in the complaint from him, or otherwise. In view of the contention now made by the defendant that he was not in possession of the building, had no tenant therein, and never had any, the form of this denial is very significant. It is consistent with the idea that his agent had done the letting, and he had no knowledge upon the subject; but it is inconsistent with the idea that he had never had any tenants whatever in that building. If the latter had been the fact, he did have knowledge sufficient to form a belief upon the subject. He knew that the allegation was untrue, and he would have denied the allegation as broadly as he has other allegations in the complaint. The claim that the defendant was not in possession, but that Abbott was tenant at will, and in possession, is inconsistent with the whole course of dealing of the parties. There is no pretense of any lease; no rent reserved; no right of possession in Abbott for a single instant. Upon the contrary, the defendant could have taken actual possession at any moment, and did actually pay Abbott for his services, who paid over to the defendant the amounts received over and above expenses, rendering detailed accounts of receipts and expenses, showing tenants named and rent received from each, and disbursements made in caring for and maintaining the property. Under the evidence showing the relations between the defendant and Abbott, if the defendant had demanded possession, and Abbott had insisted upon remaining in as tenant at will, demanding the statutory notice to quit, we do not think that any such claim could be upheld, but that the defendant would be adjudged in possession against Abbott, he having no right to possession except as the agent of the defendant. The whole of the transactions between the parties showed that Abbott was expected to and did account to the defendant as owner for the moneys realized by letting the premises, less expenses, and the sums agreed to be paid to him for his services. The next question presented is as to the liability of the defendant because of the negligence of his servants. The referee has found that there was no negligence, and if this conclusion is borne out by the evidence, then no liability against the defendant, even if deemed in possession, has been established. The plaintiff was tenant of a portion of the upper part of the building which fell, and Abbott attempted to repair the lower floor of the building so as to suit the demands of a new tenant. In doing so he interfered with the supports of the building, and for some reason which we cannot definitely determine from the evidence the building fell, and loss ensued. It is undoubtedly true that the foundation of this action is negligence, and that negligence must ordinarily be affirmatively shown on facts proven from which negligence may be legitimately inferred, and which are inconsistent with want of negligence; but the relations of the parties may be such that the happening of an accident imputes negligence until the contrary is shown. It is the familiar rule that where a passenger is seeking to recover from a railway company damages sustained by the happening of an accident to a train upon which he is traveling, after the accident is shown to have occurred, there is a presumption of negli gence, as such results in the ordinary course of events are only caused by negligence, and the burden is upon the railway company to show, if it seeks to absolve itself, that the accident was occasioned by some cause which could not be foreseen or guarded against. In the case at bar the plaintiff was a tenant of the defendant. It occupied the upper floor of the building, and was entitled to undisturbed occupation thereof, and although the defendant was not, perhaps, an insurer, yet he was bound to do nothing which could interfere with such occupation. If, with tenants in the building, the defendant desired to make repairs which affected the supports and foundations of the building he was bound to use the greatest degree of care, not mere ordinary care, because he is bound to use this degree towards persons to whom he owes no duty, and if by his alterations he endangers the safety of his tenants, he does so at his peril, and cannot shield himself from responsibility after a catastrophe has happened, by saying, "I used ordinary care, and employed skillful mechanics; but in spite of all, for some unknown reason, the building fell." The presumption in such a case would be that the building fell because of the repairs, and unless the landlord could show what the cause was, and that he was in no degree responsible for it, such presumption would remain. No such explanation is made out here, and consequently the landlord is not excused. We have examined the cases referred to by the learned counsel for respondent, but none of them present the question which is being considered. In none of them was the accident presumably caused by the direct interference with the supports of the building, as in the case at bar, but the accident happened without any warning, such as would put a prudent man upon his guard. There is a vast difference, it seems to us, in the rule which is to govern cases where the accident happened presumably through the active interference of the landlord and those cases where the accident happened from some cause, the existence of which a man of ordinary prudence would not have any reason to suspect. If a landlord assumes to meddle with the supports of an occupied building, he does so at his peril, and if an accident is caused thereby, and his tenants are injured, to whom he owes the duty of leav ing them in quiet possession, the least that can in justice be required is that he should show that he has exercised the highest degree of care, and that notwithstanding such care the accident has occurred. It is claimed that whatever the liability of the defendant may be, he is not liable for any loss arising from the destruction of property by fire, because the damage was too remote. That the defendant is not liable for the damage which was caused by the burning of the adjoining buildings seems to be clear from principles laid down in the adjudicated cases. Ryan v. Railroad Co., 35 N Y. 210. In that case, and in this respect it has not been overruled, it is laid down as the law of this state that where a house takes fire through the negligence of the owner or his servant, and the flames extend to and destroy an adjacent building, that such owner is not liable for the damage sustained by the owner of the second building by such burning. Applying this rule to the case at bar, although by the fall of the building upon which the repairs were being made, its destruction by fire was to be anticipated, because fires were used therein, that the fire should spread and consume other buildings, was not a necessary or a usual result, and depended upon many circumstances, in the absence of any one of which this result would not have followed. We can see no distinction between the Case of Ryan and the one at bar. The fact that the same person owns both buildings can in no way affect the question, as, if the owner of the building in which the fire originated would not be liable to the owner of the second building, neither would he be liable to the occupants of the second building, no matter whom its owner might be. Although it is claimed that by subsequent decisions the court of appeals have overruled the Ryan Case, yet in none of the cases were the facts the same, and the court expressly refrain from holding that the Ryan Case is no longer authority. If the law in this state is different from that stated in the Ryan Case, and if the occupant of a house is to be held liable for the destruction of adjacent buildings, where his servant has by his carelessness caused a fire in the house occupied by him, it is time that it should be known, as not one conflagration in ten occurs except through the negligence of somebody. The buildings in the case at bar had separate and distinct wails of brick and stone, and are to be deemed separate and distinct buildings in the consideration of this question, and we can see no ground of liability upon the part of the defendant for the loss arising in such a building. For the loss occurring by fire in the building itself there seems to be a clear liability, if negligence is established. As well might a railway company claim exemption from liability for damages arising from an accident, because, although it had injured its passengers by a collision occasioned by negligence, yet, as the train had taken fire, and the passengers had been burned up, no damages could be recovered, as the burning of the train was not the natural and proximate result ordinarily arising from railway accidents. We have failed to meet any case where even these corporations have had the temerity to advance such a plea. The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. DANIELS and BARTLETT, JJ., concur. (50 Hun, 278) DYETT v. SEYMOUR et al. (Supreme Court, General Term, First Department. November 23, 1888.) WITNESS-EXAMINATION OF DEFENDANT BEFORE TRIAL. In an action against a broker for moneys paid to him on his false representations that losses had occurred in alleged dealings in stock on plaintiff's account, where notices of the transactions were given to plaintiff, but a part of the notices have been lost, and some of the persons named in them have denied the transactions stated therein, an order directing the examination of defendant before trial is proper. Appeal from special term, New York county; GEORGE C. BARRETT, Justice. In this action by Arthur Dyett, survivor of A. R. L. Norton, against James M. and Allen L. Seymour and James A. Baker, an order for defendants' examination before trial was granted, and they appeal. For opinion on appeal from order for the production of books, etc., see post, 842. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. VAN BRUNT, P. J. This action is brought by the plaintiff, as assignee of one John C. Eno, to recover from the defendants a large sum of money alleged to have been obtained from said Eno by means of false and fraudulent representations made by the defendants to said Eno,-such representations being to the effect that the defendants had bought and sold certain stocks for him as his brokers, and that upon said transactions certain large losses had occurred, which losses said Eno paid; whereas in fact the defendants did not make such purchases and sales, and such losses were never incurred. By the proposed examination the plaintiff seeks to discover the names of the persons who were the purchasers of such stocks, and the names of the persons to whom the sales of stock were made. It is admitted that notices of purchase and sale were rendered to Eno at about the time of the alleged transactions, but it is claimed by the plaintiff that a large part of them have been lost; and as is stated by the learned justice who heard the motion, that whatever view may be taken of the conflict of testimony between the defendant Baker and his then clerk, Sanger, it is certain that neither Eno nor the plaintiff have the notices in question. It further appears that in some instances where the notices have been kept the persons named therein as purchasers or sellers have denied that they had ever made any such transactions. Under such circumstances, it is not to be wondered at that a customer of a broker's firm should like to investigate a little further into the transactions of his agent. It appearing in cases where notices have been kept that there is reason to suppose that the transactions never took place, the attempt to ascertain whether any, and, if so, what, other transactions are of the same fraudulent character, cannot be said simply to be an attempt to find out whether there is a cause of action. The defendants were Eno's agents. He had no personal knowledge as to these transactions, and necessarily relied upon the good faith and honesty of such agents; and, where he has good ground to suspect such good faith, he should be afforded an ample opportunity for investigation. If these transactions were in good faith, the examination can do no harm; but if they, or any one of them, were fraudulent, it affords the only means by which the plaintiff can prove them to be so. The order directing the examination of the defendants before trial should therefore be affirmed, with costs and disbursements. DANIELS and BARTLETT, JJ., concur. DYETT 0. SEYMOUR et al. (Supreme Court, General Term, First Department. November 23, 1888.) PRACTICE IN CIVIL CASES-PRODUCTION OF BOOKS-EXAMINATION BEFORE TRIAL. An order for the production of defendants' books for inspection should not be granted concurrently with an order for defendants' examination before trial; but, if it should subsequently appear that plaintiff cannot procure by the examination the information he is entitled to, he should have leave to renew his application for the production of the books. Appeal from special term, New York county; GEORGE C. BARRETT, Justice. Defendants appeal from an order for the production of their books for inspection. For a further statement, and for the opinion on appeal from an or der for defendants' examination before trial, see ante, 841. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. VAN BRUNT, P. J In another appeal, founded upon the same facts as are disclosed by these papers at the present term, we have affirmed an order directing the examination of the defendants herein. Ante, 841. This is all the relief that the plaintiff, in our judgment, in the present stage of this action, is entitled to. Upon their examination before trial, the defendants can be compelled to produce their books as upon the trial, and can be compelled to refer to them for the purpose of answering proper inquiries as upon the trial, and thus the plaintiff can procure all the information to which he is entitled. If it should subsequently appear that the information which the plaintiff is entitled to receive from his agents cannot be procured in this way, and that an inspection of the books is necessary and requisite, then the plaintiff should have leave to renew his application for a production of the books. Order reversed, with $10 costs and disbursements to the appellant, to abide the final event; and with leave to the plaintiff, after the examination of the defend |