People, &c., of New York agt. Excelsior Gas-light Company.

The answer, as to the first cause of action is, that the corporation is not authorized to manufacture illuminating gas, not being organized under the act to authorize the formation of gas-light companies, and that it has always been ready, excepting when stayed by injunction, to transact the business for which it was created, and that, except when so prevented, it has always transacted its lawful and ordinary business.

As to the second cause of action, it is alleged that a judg ment referred to in the complaint was paid by contributions from several stockholders, to be repaid by sales of stock, and that the said company has no liabilities to creditors by way of judgments unsatisfied. It is also submitted in the answer that the defendant is not liable to be proceeded against as a corporation of manufacturing, mining, mechanical or chemical purposes.

Under section 1785, it is not material whether the defendant is a manufacturing, &c., corporation or not, inasmuch as the provisions of the article of the Code containing that section refer to all corporations created by or under the laws of this

state.

The first subdivision of section 1785 expressly authorizes a judgment dissolving the corporation, where it has remained insolvent for at least one year.

In the complaint, in addition to the allegation that the defendant has been unable to meet its obligations, and has failed to pay the judgment which the answer alleges has been paid, it is alleged that the said defendant has not a dollar in its treasury, and is insolvent and has been so for at least a year past. The answer does not deny this allegation. It alleges payment of the judgment, and avers that the said company has no liability to creditors by way of judgments unsatisfied. A corporation may be insolvent against which no judgments have been recovered (see Ferry agt. Bank of Central New York, 15 How., 341).

A corporation, like an individual, is insolvent when it is not able to pay its debts. Insolvency means a general inability to

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answer, in the course of business, the liability existing and capable of being enforced (Brouwer agt. Harbeck, 9 N. Y., 594; Marsh agt. Dunckel, 25 Hun, 167).

As there is, therefore, no denial of the general allegation of insolvency contained in the third paragraph of the second cause of action, that allegation must be deemed to be admitted, and it follows that the plaintiffs are entitled to judgment upon the pleadings.

I will, however, give leave to the defendant to amend its answer upon payment of the costs of the action.

SUPREME COURT.

JOHN ATWATER, appellant, agt. LYDIA A. LOWE, respondent. Trespass-Responsibility of owner of cattle which have been leased for a term of years, for the trespass of such cattle while in the custody of the lessee.

The owner of cattle leased them, together with her farm, for a term of years, for a money rent. The cattle, when in the possession of the lessee, committed trespass upon a neighbor's lands. Action was brought for the damage done by the trespass against the owner of the cattle: Held, that the owner was not liable for the damage done by the cattle while trespassing; that the owner, having lost the control and possession of the cattle, and not being able to gain possession or obtain control of the cattle, is not responsible for damage caused by them (Van Slyck agt. Snell, 6 Lans., 299, followed and distinguished).

Fifth Department, General Term, January, 1886.

THIS is an appeal from an order of the county court of Allegany county, granting a new trial.

The facts are sufficiently set forth in the opinion.

Richardson & Smith, for appellant. It is a well-established rule of the common law, that the owner of cattle is liable for any trespass committed by them, irrespective of any question

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of negligence (3 Blk. Com., 211; Ellis agt. Loftus Iron Co., 11 Eng. Rep., 217). This rule has long been recognized and adopted in this state (19 Johns., 384; 5 Den., 255; 1 N. Y., 575; 3 Wend., 142; 18 id., 213).

Alfred J. Hibbard, for respondent. The defendant, at the time of the trespass, being out of possession, and having lost the absolute and entire control of the cows and farm during the continuance of the lease, could not, in any manner, be held responsible for damage done by the cows while out of her pos session (Van Slyck agt. Snell, 6 Lans., 299).

HAIGHT, J.-This action was originally commenced in justice court and was retried in the county court, resulting in a verdict in favor of the plaintiff. Subsequently the defendant moved for a new trial upon the minutes of the court and the motion was granted; from this order the plaintiff appeals to this court. The action was brought by the plaintiff to recover damages alleged to have been sustained by reason of a trespass upon his premises by cattle owned by the defendant.

The defense was that the defendant had leased her farm, with the cattle thereon, to one Theron Foster, for the term of three years, and that Foster was in the possession of the farm and of the cattle as her tenant at the time of the alleged trespass.

The evidence given upon the trial established the defense. At the close of the evidence the defendant moved for a nonsuit; the motion was denied and exception taken. The case was then submitted to the jury and resulted in a verdict in favor of the plaintiff.

The only question presented upon this appeal is whether or not the owner of cattle is liable for the damages caused by them whilst trespassing upon the lands of others when the cattle are in the possession and under the control of a tenant.

This question was disposed of by the general term of the late fourth department in the case of Van Slyck agt. Snell (6 Lans., 299). JOHNSON, J., in delivering the opinion of the court, says:

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"The county court was clearly right in holding that no cause of action was shown at the trial against the defendant, Jacob Snell. He was the general owner of a part of the cattle which committed the trespass, but he had rented them, with his farm, to the other defendant, who had the sole custody and control over them when the injury was done. The latter was alone liable under the circumstances for the injury."

This is a decision of the general term in our own department, and unless we are convinced that it is clearly erroneous we should regard it as controlling upon the question. We have not been able to find any decision in this state holding a different doctrine, but on the contrary it appears to be in accordance with the weight of authority.

It is said in Cooley on Torts, at page 340, that "The liability for the trespasses of animals is imposed not because of ownership, but because of possession and the duty to care for them. Therefore, if they are in the hands of an agister, or of any one who by agreement with the owner has the care and custody of them for the time being, and are suffered to escape and do mischief, he and not the owner is the party responsible."

In the case of Kennett agt. Durgin (59 N. H., 560) it was held that the owner of cattle kept on land of another, but remaining in his own care and control, is liable for their trespasses on land of a third person, but if the occupant of the land has the custody, he and not the owner of the cattle is liable.

In the case of Rossell agt. Cottons (31 Penn., 525) it was held that where cattle are placed in the possession of another for agistment, the person having the absolute ownership is not liable in trespass for injuries done by them.

In the case of Ward agt. Brown (64 Ill., 307) it was held that an action of trespass will not lie against the owner of cattle for trespasses committed by them while they are in the hands. of an agister or bailee.

In the case of Moulton agt. Moore (56 Vt., 700) it was held that one having the care and custody of cattle as a lessee of a farm and the stock thereon, is under the same liability for the

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damage done by the cattle as if he were the owner (see also Tewksbury agt. Bucklin, 7 N. H., 518; Gordon agt. Harper, 7 Durnford & East, 9; Hall agt. Pickard, 3 Campbell's Nisi Prius, 187).

We are aware that in Massachusetts and Maine there are conflicting decisions (see Weymouth agt. Gile, 72 Me., 446; Sheridan agt. Bean, 8 Metc., 284). But in each of these cases the cattle were in the possession of an agister. An agister is one who takes cattle for hire to pasture or care for. We think there is a distinction between a person having possession of cattle as an agister and one who has possession as the lessee of a farm and the cattle thereon. In the case of an agister, the possession is more in the nature of an agent or bailee, the owner remaining constructively in the possession, and may at any time take them into his actual possession; but in the case of a lessee, the owner's interest in the cattle is parted with for the term of the lease. Within that term he is not entitled to their products, cannot regain their possession, and they are not subject to his management or control.

Without, therefore, deciding the question as to whether or not the owner would be liable in case the cattle had escaped from the possession of an agister and committed trespass, we are of opinion that, when the escape is from the possession of a lessee of a farm and the cattle thereon, the owner is not liable for the trespass. The order of the county court granting a new trial should be affirmed.

So ordered.

BARKER and BRADLEY, J.J., concurred.

SMITH, P. J.-If the principal question in this case was res nova, I would incline to the opinion that the owner of cattle cannot relieve himself from his liability for damages done by them while trespassing on the lands of another by any arrangement he may make with a third person respecting their custody and control. If he leases them, his lessee is pro hoc vice his his agent, and the owner is liable for his negligence (Addison on