#### Magdalena Groell, Plaintiff, *v.*George Ast, as Administrator, etc., of John Ast, Deceased, Defendant.

Fourth Department,

May 3, 1911.

Megligence — setting fire to barn — evidence.

Where in an action against an administrator for the destruction of a barn and other property by a fire alleged to have been started by defendant’s intestate, plaintiff shows merely that the deceased wa¡s in the barn at the time of the fire and there met his death; that he was at the time in poor heálth and morbid, with a tendency to suicidal mania, but does not show any motive for the alleged deed or any unfriendliness between the deceased and himself, and it appears that the fire might have been started in another way, and it is as reasonable to assume from the evt dence that the deceased was trying to extinguish it at the time of his death as that he caused it, the complaint is properly dismissed.

Spring- and Williams, JJ., dissented.

Motion by the plaintiff, Magdalena Groell, for a new trial upon a case containing exceptions, ordered to be beard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a. trial at the Erie Trial Term.

*William Brennan, Jr.,*for the appellant.

*W. C: Crombie,*for the respondent.

Kruse, J.:.

The bam and other property for the loss of which the plaintiff seeks to recover was destroyed by fire in the early morning of August 9, 1908. The fire was discovered shortly after midnight, and the complaint alleges that John Ast, the defendant’s intestate, carelessly, negligently and willfully set fire to the hay in the bam, thus causing the conflagration and destruction of the property.

The plaintiff lived upon a farm situate on the west side of Union road, in the town of Oheektowaga, Erie, county. John Ast lived about 500 feet south on the same road. About a half hour before the fire was discovered he was seen on the road south of the barn, smoking a pipe, and going not in the direc*155tion of the bam but toward 1⁄81⁄8 borne. He has not been seen or beard from since that night.

After the fire there were found in the ashes pieces of charred human hones and a matchsafe, a pocketknife and a flint arrowhead, identified as those carried by John Ast in his lifetime. These articles, with the small pieces of bone, were interred in the cemetery after funeral services had been held at the home of the brothers of John, Ast.

A girl twelve years old also claims to have seen the form of a man in the fire, resembling somewhat John Ast. Her testimony is challenged as unreliable. Whether or not she actually saw what she claims to have seen, I am quite convinced that John Ast was in the burning building and lost his life there.

I do not think, however, that, it follows that John Ast fired the building, either intentionally, negligently or accidentally. So far as the record shows he was on friendly terms with the plaintiff. The case is barren of any circumstances tending in the remotest degree to establish any motive upon his part to set the fire. It is quite as reasonable to assume that he lost his dife in attempting to save the property from destruction as as that he set the fire. Furthermore, it appears that two or three hours before the fire the plaintiff’s son had been in the barn with a lighted lantern. While I do not intend to intimate that the evidence is at' all sufficient to show that the lighted lantern caused the fire, it is quite as reasonable to reach that conclusion as that John Ast set the fire.

There is evidence tending to show that John Ast was in poor health; that he had become morbid, with atendency to suicidal mania and that he made statements the day before the fire that he would die soon. Assuming that he intended to take his own life, as plaintiff’s counsel seenis to suggest, and that he committed suicide at the time of the fire, even then it is quite as reasonable to conclude that he went into the building after the fire had started and did the unnatural act of taking his own life, as that he set the fire for that purpose.

I think there has not been shown such, a chain of circumstances, unbroken and so closely connected, as to warrant the conclusion that John Ast set the fire.

The plaintiff’s exceptions should be overruled, the motion for *156a new trial denied and judgment directed for the defendant upon the nonsuit, with costs.

All concurred, except Spring and. Williams, JJ., who dissented.

Plaintiff’s exceptions overruled, motion for new trial denied, With, costs, and judgment directed for the defendant upon the nonsuit, with costs.