Opinion
May Term, 1900.
Judgment and order reversed upon the law and facts and a new trial granted, costs to abide the event.
Upon the trial of this action the objection was distinctly taken that the defendants' negligence, if any, was not the proximate cause of the injury to the plaintiff's lands; and, in connection with that proposition, it was pointed out that the fire was carried some two and one-half miles across the lands of one Joseph M. Page, before reaching the plaintiff's lands. And inasmuch as no conflict of evidence existed as to that situation, a nonsuit was asked for upon that ground. Such motion was denied and an exception duly taken. The case of Hoffman v. King ( 160 N.Y. 618) is an authority to the effect that such motion should have been granted; and I see no reason why this judgment must not be reversed on the authority of that case. The facts in that case were similar to those now before us, and the principle there decided is the one which must control this case. It is urged by the respondent's counsel that chapter 332 of the Laws of 1893 prescribes a different rule from the one adopted by the Court of Appeals in the Hoffman case. I am not prepared to agree that he is correct in that proposition, but however that may be, that argument must be addressed to that court. The decision in the Hoffman case is now controlling upon this court; and clearly within the principle there laid down, this judgment cannot stand. All concurred.