state should be protected against the encroachment of private interests upon its sovereign rights, and against the overreaching rapacity of monopolistic corporations; and private parties should also be protected against the unnecessary exactions of the state.

It is obvious that the reason of these rules does not apply to the present case. The land here in question had ceased to be useful to the state, was a small strip, suitable for a public street, and could best be devoted to that purpose by a grant of It by the state to the city. Undoubtedly the original grant of the mere easement for that purpose would have sufficed if no

Smith, (Chas, E. Fatterson, of counsel,) for respondent.

O'BRIEN, J. The record in this case presents two questions: First, whether the finding of the jury that the damage was the result of the defendant's negligence is sustained by any evidence; and, secondly, whether interest could legally be allowed by the jury in estimating the amount of the damages. On the night of the 13th of November, 1879, a valuable horse belonging to one Learned, while being driven through South street in the city of Troy, fell into an open ditch or unguarded excavation, made during that

phreys' and Hubbell's claim of title. But they did arise; the state was a party to them, and the city was the sufferer. The way to compose the difficulty was to buy out the Humphreys and Hubbell and the state, and, since it was uncertain whether the title was in one party or the other, to take all the title both could confer. This was sought to be accomplished by the act of 1878, and we think was accomplished. If the state thereby also parted with its title to the other part of the street not claimed by the Humphreys and Hubbell, it was because it did not choose to except or reserve it. No reason is perceived why the statute should not apply which provides that all the estate or interest of the grantor shall pass by the grant, unless the Intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant. 1 Rev. St. p. 748.§1. The judgment should be affirmed, with costs. All concur, except BRADLEY, J., not voting.

(135 Ν. Υ. 96)

WILSON v. CITY OF TROY. (Court of Appeals of New York. Oct. 4, 1892.) MUNICIPAL CORPORATIONS - DEFECTIVE STREETSLIABILITY- INTEREST ON DAMAGES - QUESTION FOR JURY.

is little, if any, controversy with respect to the value of the horse, the extent of the injury, or the amount of damages. The night was dark, and it is not denied that there was evidence for the jury sufficient to sustain a finding of negligence on the part of some one by reason of the failure to protect a place of danger in a publie street, by proper guards and lights. It was not shown that the city had any actual notice of the existence of the excavation, if made by private parties without its permission; and a sufficient period had not elapsed between the time of opening it and the accident to render the city liable on the ground of implied notice. The excavation was made for the purpose of conducting the water from the principal main in the street, through lateral pipes, into a private house. The owner of the house employed a firm of plumbers to do the work, which included the digging of the trench as well as laying and connecting the lateral pipes with the main in the street. The firm applied to the superintendent of the waterworks for men to open the trench in the street, and that officer directed laborers in the employ of the city to do so. The opening in the street was made by them, and they were paid for the work by the city, the plumbers refunding to it the sum so paid. The question is whether the men who dug the ditch were under the control and direction of the defendant, or subject to the orders of the plumbers engaged in performing a piece of work for the owner of the house.

affirmed.

2. In an action for damages to a horse resulting from defendant's negligence, whether interest should be allowed on the amount of damages is a question for the jury. Earl, C. J., and Finch and Gray, JJ., dissenting.

Appeal from supreme court, general term, third department.

Action by Walter V. Wilson against the city of Troy to recover damages for an injury to a horse resulting from a defective street. Plaintiff had judgment, which was affirmed at general term, (14 N. Y. Supp. 721,) and defendant appeals. Affirmed.

Wm. J. Roche, for appellant. Levi

1

The system of waterworks in Troy is the property of the municipality, and is under the management and control of a board of water commissioners, which may be regarded as a department of the city government. The commissioners are by law required to nominate, and the common council of the city to appoint, asuperintendent of the waterworks, who is the executive officer in that department, and who, in this case, directed the men in the employ and pay of the city to make the excavation in the street. The board is authorized by law toextend the distributing pipes of the waterworks wherever they might think proper, and to make such alterations and improvements in the works, and in the management and preservation thereof, as they might deem necessary and expedient, and to employ such persons and assistants as they might require, to execute any of these purposes.

by striking out the interest awarded prior to the date of the presentation of the claim to the city, which was held to be a prerequisite to the maintenance of the action. The fair construction of the charge is that the jury could include in the damages interest upon the sum found to represent the diminished value of the horse in consequence of the injury, and not that the plaintiff was entitled to interest as matter of right. The exception, therefore, presents the question whether, in an action to recover damages to property by reason of negligence on the part of the defendant, it is within the power of the jury, in the exercise of discretion, to include in their award of damages interest on the sum found to represent the diminished value of the property in consequence of the injury from the time that the cause of action accrued. When interest may be allowed as part of the damages, in actions of this character, is a question which, in the present state of the law, is involved in much confusion and uncertainty, and in regard to which the decisions of the courts are not harmonious. It is perhaps impossible from the decisions to formulate a general rule embracing every possible case. The tendency of courts in modern times has been to extend the right to recover interest on demands far beyond the limits within which that right was originally confined. What seemed to be the demands of justice did not permit the principle to remain stationary, and hence it has been for years in a state of constant evolution. This, in some measure, accounts for many of the apparently contradictory views to be found in the adjudged cases. There are certain fundamental principles, however, established by the decisions in this state, which, when properly applied, will aid in the solution of the question. There is, of course, a manifest distinction, always to be observed, between actions sounding in tort and actions upon contract. In the latter class of actions there is not much difficulty in ascertaining the rule as to interest until we come to unliquidated demands. The rule in such cases has quite recently been examined in this court, and principles and principles stated that will furnish a guide in most cases. White v. Miller, 78 N. Y. 393. We are concerned now only with the rule applicable in actions of tort. The right to interest, as a part of the damages, in actions of trover and trespass de bonis asportatis, was given first in England by St. 3 & 4, Wm. IV. The recovery was not, however, allowed by that statute as matter of right, but in the discretion of the jury. The earlier cases in this state followed the rule thus established in England, and permitted the jury, in their discretion, to allow interest in such cases. Beals v. Guernsey, 8 Johns. 446; Hyde v. Stone, 7 Wend. 354; Bissell v. Hopkins, 4 Cow. 53; Rowley v. Gibbs, 14 Johns. 385. The prinThe principle that the right to interest in such cases was in the discretion of the jury, was, however, gradually abandoned, and now the rule is that the plaintiff is entitled to interest on the value of the property converted or lost to the owner by a tres pass as matter of law. The reason given

| for this rule is that interest is as necessary a part of a complete indemnity to the owner of the property as the value itself, and in fixing the damages is not any more in the discretion of the jury than the value. Andrews v. Durant, 18 N. Y. 496; MeCormick v. Railroad Co., 49 N. Y. 315; Turnpike Co. v. City of Buffalo, 58 N. Y. 639; Parrott v. Ice Co., 46 N. Y. 369. It is difficult to perceive any sound distinction between a case where the defendant converts or carries away the plaintiff's horse and a case where, through negligence on his part, the horse is injured so as to be valueless. There is no reason apparent for a different rule of damages in the one case than in the other. In an early case in this state the principle was recognized that interest might be allowed, by way of damages, upon the sum lost by the plaintiff in consequence of defendant's negligence. Thomas v. Weed, 14 Johns. 255. We think the rule is now settled in this state that, where the value of property is diminished by an injury wrongfully inflicted, the jury may, in their discretion, give interest on the amount by which the value is diminished from the time of the injury. That is the rule laid down in the elementary books and sustained by the adjudged cases. 1 Sedg. Dam., (8th Ed.) §§ 317, 320; Walrath v. Redfield, 18 N. Y. 457, 462; Mairs v. Association, 89 N. Y. 498; Duryee v. Mayor, etc., 96 N. Y. 477, 499; Home Ins. Co. v. Pennsylvania R. Co., 11 Hun, 182, 188: Moore v. Railroad Co., 126 N. Y. 671, 27 N. E. Rep. 791; Railroad Co. v. Ziemer, 124 Pa. St. 560, 17 Atl. Rep. 187.

There is a class of actions sounding in tort, in which interest is not allowable at all, such as assault and battery, slander, libel, seduction, false imprisonment, etc. There is another class in which the law gives interest on the loss as part of the damages, such as trover, trespass, replevin, etc.; and still a third class in which interest cannot be recovered as of right, but may be allowed in the discretion of the jury, according to the circumstances of the case. This action belongs to the latter class, and, as we have construed the charge as a direction that the jury might, in their discretion, allow interest on the diminished value of the horse, it was not erroneous.

Our attention has been called to the case of Sayre v. State, 123 N. Y. 291, 25 N. E. Rep. 163, and it is urged, upon the au thority of that case, that interest cannot be allowed in any case for the recovery of unliquidated damages arising from negligence. We think that the case, when correctly understood, does not sustain the contention, but, in effect, holds the contrary. In that case a party appealed from the decision of the board of claims upon an award in his own favor, and the only question was whether, upon the evi dence and findings, the claimant had been allowed all the damages that he was entitled to, and this court not only affirmed his right to all the damages that the board had awarded him, but increased the award from $3,000 to $8,136. The claim was based upon the negligent act of the state in overflowing the lands of the claimant, from which the damages claimed re

sulted. The board of claims allowed no interest, nor did this court. In adding to the award a sum of over $5,000, this court acted, in some sense, as a court of original jurisdiction, and in making up the sum which was to constitute the final award it refused to allow an item of interest claimed. Now, it is admitted that a court or jury, charged with the duty of making up the amount of damages in such cases, inay refuse to allow interest, and that is precisely what this court did, and nothing more, and therefore the case is in harmony with the rule above stated, and with the cases from which we have deduced it. It is far from holding thatitis error when, in such a case, the jury, or the original court, after considering all the facts and circumstances bearing upon the loss, allows interest, in the exercise of discretion, as part of the indemnity to which the party is entitled. It simply recognized the rule that interest in such cases was not a matter of right, but of sound discretion, and held that the claimant was fully indemnified for his loss without adding interest. It is true that the learned judge

Appeal from supreme court, general term, third department.

Action by Josie Quilty, an infant, by guardian, etc., against Rebecca B. Battie and Joseph M. Battie, to recover damages for the bite of a dog. From a judgment of the general term (15 N. Y. Supp. 765) affirming a judgment entered for plaintiff on the verdict of a jury, defendants appeal. Affirmed as to defendant first named, and reversed as to the other.

Matthew Hale, for appellants. С. С. Van Kirk, for respondent.

MAYNARD, J. The plaintiff has recovered against both defendants, who are husband and wife, for injuries resulting from the bite of a vicious dog. The liability of the wife is disputed on the grounds that she is a married woman, that the dog belonged to her husband, and that she is not responsible for the trespasses committed by it. There is no conflict in the evidence upon any material point affecting her liability. She had been the owner of the premises where the dog was kept since December, 1887. They formerly

ing upon contract in which it has been held that interest is not allowable, and remarked that he found no case justifying an allowance of interest. That was probably an inadvertence, but the decision refusing interest was right, though the reasons may have been based upon a principle applicable to another class of actions. It must be remembered that the court was not reviewing any question decided below in regard to interest, but seeking to make up for itself a new award from the items of the claim appearing in the record, and wwhatever was said by way of argument, and as the reason for throwing out an item of interest on a sum claimed to have been expended in restoring or reclaiming the land, cannot be considered as the judgment of the court on the question now under consideration. That question was not noticed in the argument, and was not involved in the case, except, perhaps, as a matter of discretion. For these reasons the judgment should be affirmed. All concur, except EARL., C. J., and FINCH and GRAY, JJ., dissenting.

QUILTY v. BATTIE et al. (Court of Appeals of New York. Oct. 4, 1892.) HUSBAND AND WIFE-VICIOUS DOG-LIABILITY OF WIFE-ACTION AGAINST-JOINDER OF HUSBAND.

1. A husband living with his wife on premises owned by her has no such control over the premises, since the passage of Laws 1862, c. 172, securing a wife the same property rights as if unmarried, as to excuse her liability for the act of a dog kept and harbored by the husband with her consent, and with knowledge of its viciousness, and which is allowed to escape and bite a person on other premises. Com. v. Wood, 97 Mass. 225, distinguished. 15 N. Y. Supp. 765, affirmed.

2. A husband, though responsible for the personal torts of the wife, is not responsible for trespasses committed by her in the management of her separate estate, as in the harboring of a vicious dog, and should not, therefore, be joined as a party defendant. 15 N. Y. Supp. 765, reversed.

acquired title the dog remained there, and was fed and cared for by her. It was shown to have had vicious propensities, to her knowledge, and on one occasion she interfered to protect it when a person whom it had attacked attempted to strike it in self-defense. She bore the expenses of the household, and, with her husband, constituted the entire family. There is no proof in the record that he had any property there, except the dog, or that he had the care or management of his wife's property, or was in possession of it as her tenant, or assumed to control or direct her with respect to the domestic animals which should be kept upon the place. As stated in Addison on Torts, (Dud. & B. Ed. p. 230,) it is not material in actions of this character whether the defendant is the owner of the dog or not. It is enough for the maintenance of the action that he keeps the dog; and theharboring a dog about one's premises, or allowing it to be or resort there, is a sufficient keeping to support the action. As soon as such an animal is known to be mischievous, it is the duty of the person whose premises it frequents to send it away or cause it to be destroyed. The trial judge charged the jury, in substance, that if the dog was vicious, and Mrs. Battie knew it, and with such knowledge of its viciousness kept and harbored it upon her premises, she was liable for the injury which plaintiff had sustained. It is not denied that this instruction was unexceptionable, unless the defendant was relieved from liability because of the fact that the dog was the property of her husband, and that he lived with her in the house and upon the premises where it was harbored and kept. A vicious domestic animal, if permitted to run atlarge, is a nuisance, and a person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance, and for all the damages directly resulting from it. The question, therefore, presented by this