#### Walter F. Taber, Resp’t, *v.*John Cruthers, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed February 9, 1891.)*

1. Trespass—Liability oe owner oe cattle.

It is the duty of an owner of cattle to see that they are restrained upon his own land, and where he permits them to get upon a temporary road from which they enter upon the land of another at a point where it is the duty of a third person to fence, he is liable for the damage done thereby, although such third person’s negligence may have contributed to the iniury.

2. Same.

Where numerous trespasses by cattle are proved, the burden is upon their owner to show that he was not in fault.

*332Appeal from judgment of county court, affirming judgment of a justice of the peace in favor of plaintiff.

Action to recover damages caused by trespass by defendant’s cattle. A railroad company, in constructing its road through lands of plaintiff and one Haggerty, made a deep cutting which cut off a portion of their lands. To enable them to reach said portion the company gave them a right of way over its lands along the cutting, and fenced between a new roadway constructed by it and defendant’s land, leaving a gate therein which plaintiff and Haggerty used to cross defendants land in order to reach their own, an opening being left in the further corner of defendant’s fence for that purpose. Through this opening defendant’s cattle passed into the lane left by the railroad and so upon plaintiff’s land.

*Frank B.*Lown, for app’lt; *C. F. Cossum,*for resp’t.

Pratt, J.

There is but little in this case but questions of fact, and those were settled below by findings in favor of the plaintiff.

There is no evidence that the fence at the point where the defendant’s cattle got out of his lot was taken down or destroyed by the plaintiff; in fact it does not clearly appear where they did get out, although there is some proof that it was at parts of an old stone wall that had been torn down.

The fact that a gate had been placed in the fence for the convenience of the plaintiff constituted no defense without going further and showing that plaintiff left it open, there being no proof it was not sufficient and secure when it was put up.

When the plaintiff had proved a frequent trespassing upon his land by the defendant’s cattle, we think the burthen was cast upon the defendant to show he was not in fault, inasmuch as the defendant made no explanation, so far as appears, when notified of various trespasses.

Assuming, however, that the cattle went out of defendant’s land through the temporary road and in plaintiff’s land at a point where it was the duty of Haggerty to fence, the defendant would still be liable for permitting his cattle to get into the temporary roadi It was defendant’s duty to see that his cattle were restrained upon his own land, and, although Haggerty’s negligence may have contributed to the injury, yet the defendant is liable. .

These trespasses had continued for so long a time to the knowledge of defendant that the duty was cast upon him to either fence against this temporary road or close it entirely, no matter who made the road.

In any view we think the defendant failed to make any valid defence, and the judgment must be affirmed.

Barnard, P. J., and Dykman, J., concur.