premises of which plaintiff is lessor joined lands owned by defendant, upon which land defendant had erected a flag shanty, in such close proximity to plaintiff's building that the intervening space was insufficient for a person to pass through. The shanty was constructed of pine boards, was about eight feet square and eight feet high. It was furnished with a small iron stove, with cover on top; an iron pipe from which ran through the roof. The shanty caught fire and burned down at about 6:30 a. M. of December 25, 1888, inflicting the damage sued for. Plaintiff's lessor testified that he had seen the shanty before the burning, described the stove, and further said that "there was a bench around this shanty. There was also oil cans, waste, and oil lamps." It further appeared that soft coal was burned in the stove. There was no direct evidence as to the origin of the fire. Defendant offered no evidence. The jury rendered a verdict for plaintiff. Defendant now insists that plaintiff should have been nonsuited.

*

"Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, * * renders the owner or possessor liable for all damages arising from such use." Heeg v. Licht, 80 N. Y. 582. As stated by BRONSON, C. J., in Vandenburgh v. Truax, 4 Denio, 464: "It may be laid down as a general rule that when one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable, in some form of action, for all the consequences which may directly and naturally result from his conduct. * * * It is not necessary that he should intend to do the particular injury which follows; nor, indeed, any injury at all." Id. 465, 466. In Campbell v. Seaman, 63 N. Y. 577, Judge EARL enunciates a like doctrine, and holds that what is reasonable use must depend upon the circumstances of each case. Applying the rule of law thus laid down to the facts in this case, we find that the defendant constructed a small building of inflammable material, with a stovepipe running through the roof, and inside of which it kept highly combustible substances, which would ignite at once, upon coming in contact with flame, and which has been found to possess the qualities of spontaneous combustion. The character of such inflammable substances is presumed to be known by persons of mature years and ordinary intelligence. Lanigan v. Gas-Light Co., 71 N. Y. 29. While the erection of a shanty, and its proper use, would be undoubtedly legal, yet, the character of its construction and manner of its use, together with the surrounding circumstances, we think, presented a question for the jury, to say whether or not such acts were done in such a careless and improper manner as to produce the result found here. It being therefore a question for the jury, their verdict furnishes everything essential to sustain the judgment. Barrick v. Schifferdecker, 48 Hun, 355, 1 N. Y. Supp. 21. It is suggested that the testimony of the owner that waste and oil were kept in the shanty was not sufficiently definite, as it very well might have related to a long time prior thereto, and not at the time of the occurrence of the fire. We think otherwise; that the jury were warranted in drawing the inference that such a condition as described by the witness existed at all times, and so existed at the time of the fire, and was the cause of it. If it were otherwise, the defendant could easily have shown it by the flagman, who was in its employ, and who was present at the trial. The omission to do so was a circumstance which the jury were entitled to consider. Bleecker v. Johnston, 69 N. Y. 309; Schwier v. Railroad Co., 90 N. Y. 558-564; Bruce v. Kelly, 39 N. Y. Super. Ct. 27. The defendant also insists that no action will lie for the damages here sustained in any event. In support of this claim it relies upon Ryan v. Railroad Co., 35 N. Y. 210. There the defendant had negligently fired a woodshed upon its premises, and the fire communicated to plaintiff's property, 130 feet away.

The court held the damage too remote. It, however, admits lia

bility when the damage is the proximate result of the act; and that such proximate result would exist when the damage occasioned was the ordinary and natural result of the fire. In the present case it needs but a statement to show that this case is easily distinguishable. The shanty was immediately adjoining the structure injured. One could scarcely burn without the other being damaged to a greater or less extent. It is therefore seen that the burning shanty was the direct and proximate cause of the damage complained of. In Webb v. Railroad Co., 49 Ñ. Y. 425, Judge FOLGER says: "It certainly is not a novel proposition that he who by his negligence or misadventure creates or suffers a fire upon his own premises, which, burning his property, spread thence onto the immediately adjacent premises of another, and there destroys the property of the latter, is liable to him in an action for the damage which he has suffered." The same principle is affirmed in Lowery v. Railway Co., 99 N. Y. 158, 1 N. E. Rep. 608; Briggs v. Railroad Co., 72 N. Y. 26. These cases furnish ample authority upon which to sustain the judgment upon this point. There being no other questions involved, the judgment is affirmed, with costs. All concur.

CHILCOTT et al. v. CITY OF BUFFALO.

(Superior Court of Buffalo, General Term. November 19, 1889.)

1. TAXATION-IRREGULAR ASSESSMENT-WHEN A DEFENSE.

Under Laws N. Y. 1880, c. 275, § 9, providing that every assessment made shall be presumed valid and regular until the contrary appears, and that its invalidity or irregularity shall not be a defense to any action for its collection, commenced after the expiration of one year from the delivery of the roll, unless an action to test the validity or regularity of such assessment shall have been commenced within the time herein before limited for its commencement, and shall be still pending, or such assessment shall have been adjudged irregular and invalid,—an action to vacate an assessment cannot be maintained after the expiration of a year from the delivery of the roll to the treasurer, even though another person, assessed on the same roll, has procured judgment canceling his assessment. 2. SAME-WAIVER OF OBJECTIONS.

Under the city charter of Buffalo, title 6, §§ 12, 13, providing that when an assessment roll is delivered to the clerk he shall cause a notice thereof to be published, and, unless objections to the roll be filed within 10 days by some person interested therein, it shall be deemed confirmed, failure to file objections as provided is a waiver of any irregularity in the proceedings upon the assessment. BECKWITH, C. J., dissenting.

On demurrer to defendant's answer.

Action by Robert Chilcott and another against the city of Buffalo, to annul an assessment.

Argued before BECKWITH, C. J., and HATCH and TITUS, JJ.

Giles E. Stillwell, for plaintiffs. Frank C. Laughlin, for defendant.

HATCH, J. The complaint in this action contains three paragraphs, the first of which alleges the ownership by plaintiffs of certain property, giving its location. The second alleges that defendant is a municipal corporation. The third, that heretofore, and in 1885, the common council of the defendant adopted a resolution of intention to pave Hamburg street, in said city, according to certain plans and specifications then on file in the engineer's office; that at the said time there were no plans and specifications, with respect to said pavement, on file in said office; that the said plans and specifications were prepared after the adoption of said resolution by the engineer, but that they were in many respects changed from the provisions of the resolution, and, as finally prepared, bids were advertised for sealed proposals for paving said street; that thereafter proposals were received for doing said work, at a stated price, and that thereupon the common council adopted two resolutions, one of which ordered Hamburg street paved in accordance with the said plans

and specifications, and the other that the expense thereof be assessed upon the real estate benefited by such improvement, in proportion to the benefits resulting thereto; that upon the passage of said resolution the same was taken to the mayor's office, and, he being absent, some person wrote across the face thereof, "Approved August 31st. MICHAEL CALLIHAN, Acting Mayor;" that said resolutions were not presented to the mayor until September 4, 1885, and were not approved by him until September 14, 1885; that on the 1st of September, 1885, the assessors of defendant completed said roll, and the same was on file in their office, and caused the same to be published, on six successive days in September, in the official paper, commencing on the 2d and ending on the 7th, and on no other days; that in and by said roll plaintiffs' lands were assessed, naming the sums respectively; that said sums included a large part of the cost of building a retaining wall; that said roll was not spread in accordance with the principle laid down in the charter. It then alleges the manner in which said principle was violated; and that, by reason thereof, plaintiffs and others were injured by being assessed an unjust proportion of the cost of such paving. It then alleges that the roll is irregular and void, but that upon its face it is apparently regular and valid; that the defendant, its agents and servants, are now proceeding to enforce payment of said assessment; that said property will be sold, and plaintiffs will suffer irreparable injury; that heretofore one John Lyth, assessed upon said roll, commenced an action in the supreme court to set aside said assessment against his property, on the ground that the same was irregular and void; that such proceedings were had; that the cause was tried, and a judgment obtained declaring said roll null and void. And plaintiffs demand judgmentFirst. "That said roll, and the assessments therein contained, are null and void." Second. "That the defendant, its officers, servants, and agents, be forever restrained from taking any steps towards collecting the same; and that the comptroller be directed to cancel and discharge from the records any and all of such assessments; and for such other and further judgment or relief as to the court shall seem just and right." It is thus seen that the complaint is based upon two theories-First, that the roll is void for certain irregularities, which it specifies; and, second, that a judgment has already been obtained, declaring said roll null and void.

* *

The first defense of the answer demurred to pleads a statute of limitations, and has for its basis section 9, c. 275, Laws 1880. This statute, so far as applicable here, is as follows: "It shall be presumed that every tax levied and assessment made is valid and regular, and that all the steps and proceedings required by law were taken and had, until the contrary shall be made to appear. * The invalidity or irregularity of any tax or assessment shall not be available as a defense to any action or proceeding, commenced after the expiration of one year from the delivery of the roll, as aforesaid, for the collection of the said tax or assessment, or for the enforcement of any right or title, by virtue of any sale thereunder, unless an action or proceeding to test the validity or regularity of such tax or assessment shall have been commenced within the time herein before limited for commencing the same, and shall be still pending, or such tax or assessment shall have been adjudged to be irregular and invalid." It is thus seen that affirmative actions for relief from an invalid and illegal assessment must be commenced within one year from the delivery of the assessment roll to the treasurer of defendant; and that such irregularity and invalidity may not be availed of as a defense against proceedings, after the lapse of one year, for its enforcement. Upon the lapse of time occurring, the statute makes the presumption of validity conclusive; but it is excepted from such result in the event that the tax shall be adjudged irregular and invalid. It may be regarded as the law that affirmative actions to vacate and annul irregular and invalid assessments must be brought within one year after the delivery of the roll to the treasurer, and may not be

1

maintained after that time by a person affected thereby, even though another person, assessed upon the same roll, and for the same tax, has successfully maintained an action, and procured judgment canceling his assessment. In re Delancey, 52 N. Y. 80; Wilkes v. Mayor, etc., 79 N. Y. 621; Moore v. City of Albany, 98 N. Y. 409. Here the allegation of the answer is that more than a year has elapsed since the delivery of the roll to defendant's treasurer, and the time of the commencement of the action. If this allegation be true, then it furnishes a perfect defense to all the allegations of the complaint, wherein it alleges, and seeks to take advantage of, irregularities; and this, even though a judgment vacating certain assessments for the same irregu larity has been obtained by another person. If it were true, as claimed by plaintiff, that the only question presented by the complaint is based upon the judgment declaring the roll null and void,-which he seeks to use as a defense against the defendant's efforts to enforce it,-it would present an entirely different question; for, while he may not use such adjudication as a weapon of attack, he may use it for defense. Chase v. Chase, 95 N. Y. 380. here the plaintiffs have sought to use the whole, and, in part, to demand affirmative relief based upon alleged irregularities, as to which the statute furnishes a complete defense. It was therefore properly pleaded.

But

The second defense demurred to alleges that the assessors, as to this particular roll, acted in a quasi judicial capacity, and that their determination is in the nature of a judgment, and, consequently, not reviewable in this action, and that, if any irregularities in the proceedings have been committed, they have been waived by the failure of plaintiff, or any person interested, to file objections to said roll, so that the same might have been corrected by the common council; and, in consequence, plaintiffs are estopped from questioning the regularity of the proceedings. The first part of the answer is, perhaps, unnecessary, as defendant could urge it as matter of law, upon the facts appearing in connection with the proceedings; but, as to the last clause, it alleges a fact, viz., that plaintiffs failed to appear at the proper time, and file objections. By section 12, tit. 6, of the charter, it is provided that when the assessment roll is delivered to the clerk he shall cause a notice thereof to be published; and that objections thereto may be filed within 10 days, by any person interested therein. Section 13 provides, if no objections be filed, the roll shall be deemed confirmed. Section 14 provides that if objections be filed the city clerk shall lay the roll, with the objections filed, before the common council, who shall hear the objections, and confirm the roll, or annul it, or refer it back to the assessors, to make a new assessment. Under these provisions, and like ones, it has been held that such failure to appear as provided for was a waiver of any irregularity. Lyth v. City of Buffalo, 48 Hun, 180. People v. Mayor of Brooklyn, 4 N. Y. 421-442. It is therefore quite apparent that both defenses demurred to, if true, constitute a complete defense to a portion of the allegations relied upon in the complaint. The demurrer is therefore overruled, with costs.

SANDERS v. NEW YORK EL. R. Co. et al.

(Common Pleas of New York City and County, General Term. December 2, 1889.) ABATEMENT AND REVIVAL-WHAT ACTIONS MAY BE REVIved.

An action for an injunction, in which incidentally damages for the maintenance of a railroad are demanded, is not an action for trespass, and on the death of plaintiff may be revived in the name of his devisee and executor.

Appeal from special term.

Argued before LARREMORE, C. J., and BOOKSTAVER and VAN HOESEN, JJ. Edward C. James, for appellants. Henry G. Atwater, for respondent.

LARREMORE, C. J. This action was commenced by the late Charles W. Sanders. He died seised of the premises to which the action relates, and leaving a will, in and by which he appointed his wife, Elizabeth B. Sanders, sole executrix, and made her sole devisee of his real estate. The present appeal is from an order reviving the suit, and directing it to be continued in the name of said Elizabeth B. Sanders individually and as executrix. The main contention of the learned counsel for the appellants is founded on the assumption that the present action is a common-law action for trespass. The case of Dyckman v. Allen, 2 How. Pr. 17, (a special term decision,) is cited, which holds that an action for trespass abates upon the death of one of several plaintiffs, and cannot be continued in the name of the survivors. From such proposition of law the learned counsel argues that the case at bar abated upon the death of the sole original plaintiff, and that, in order to pursue her remedy for an injunction, Mrs. Sanders must, as devisee, begin a new action. But this suit is not technically an action for trespass. It is an action for an injunction, in which incidentally damages for the maintenance of the elevated railroad are demanded. Undoubtedly the former principles of law on this subject have been modified, and quite materially extended, to fit the peculiar exigencies of these litigations. In Shepard v. Railway Co., 5 N. Y. Supp. 189, it was held that the claim for the injunction and for damage constitute but a single cause of action, and that the heirs of a co-owner and his administrators are proper parties to be joined as plaintiffs. The tendency of the decisions has been to bring these actions into the general class of equitaable actions founded upon the title to real estate, such as actions for partition, for specific performance, etc. It is the settled rule in equity that such actions do not abate upon the death of the plaintiff, but may be revived and prosecuted in the name of the proper successors in interest. Hoffman v. Tredwell, 6 Paige, 309; Douglass v. Sherman, 2 Paige, 359; Earl of Durham v. Legard, 34 Beav. 442; Jackson v. Ward, 1 Giff. 30. It is conceded that all the rights demanded by the original plaintiff pass in some form or forms to some person or persons. Regarding the case at bar, therefore, not as an action for trespass, but simply as an action in equity affecting rights in real estate, it should be revived in its entirety. This course was adopted in granting the order appealed from. We have formerly held (McGrea v. Railroad Co., 13 Daly, 302) that a devisee and executrix might properly join in bringing one of these actions. It follows that if the action is to be revived the devisee and executrix are the proper persons to be substituted as plaintiffs. See, also, Shepard v. Railway Co., supra. A revival precisely similar to the one here complained of was made in Henderson v. Railroad Co., 78 N. Y. 423. A testator died pendente lite, and the suit, which was for an injunction and damages against the Central Railroad Company for depriving said testator of land, was revived in the name of his devisees and executors, and in such form prosecuted to judgment. It appears that the revival was by order of the court, but whether the points which appellants now raise were taken v.7N.Y.s.no.14-41