Whether the defendant is liable for the injuries sustained by the plaintiff must be solved by a consideration of section 32 of the Railroad Law, being chapter 565 of 1890, as amended by chapter 676 of the Laws of 1892. In that section it is provided as follows: “ Every railroad corporation, and any lessee or other person in possession of its road, shall, before the lines of its road are opened for use, and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings, whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and,shall construct, where not already done, and hereafter maintain, cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon.” Apparently the language of the section declares the duty en joined against three parties: (1) A railroad corporation ; (2) any lessee of the corporation, and (3) other person in possession of its road. We are called upon to say by the evidence, in order to support the contention of the respondent, either that the defendant is a lessee of the road, or that it was in possession of the road at the time of the injuries complained of. No written lease was produced authorizing the defendant to take possession of the unfenced road; nor requiring it to pay rent for the use of the real estate; nor was there any evidence authorizing it to take possession of the Lehigh Valley road.
*393The several statutes preceding the act of 1892 are referred to in Throne v. Lehigh Valley R. Co. (88 Hun, 146). In the course of the opinion delivered in that case it was said: “We are of the opinion that the word ‘agents’ in'the statute has reference only to the agents of the corporation or person operating the road, and that neither the engines nor cars which, in this case, caused the damages, nor the .employees operating them, can be said to have been the agents of the defendant.”
Respondent calls our attention to Tracy v. Troy & Boston R. R. Co. (38 N. Y. 433). When that case was decided the statute provided that every railroad should maintain fences on the sides of their roads; and it was there held that the defendant “ was essentially an owner and operator of the road and * * * liable for the injury complained of.” The case is quite distinguishable from the one before us.
The respondent calls our attention to Burchfield v. The Northern Central Railway Co. (57 Barb. 589), which was decided in 1870. In that case it appeared that the defendant was running a railroad belonging to another corporation “ and using it for the ordinary purposes of a railroad, for its own benefit, under and by virtue of a written agreement with the owners, and for a period of time only fixed by the terms of a lease made to another corporation, and assigned to the defendant, who agreed to pay the rent reserved in said lease ; ” and in that case it was held that the defendant was a lessee of the road within the meaning and intent of the act of 1864, which amended the act of 1850 by extending its provisions to any lessee of any railroad. In that case it appeared very clearly that the defendant was in possession of the railroad upon which the injury happened, and that such possession was under the written lease assigned to it; and, therefore, it was jiroperly held that it was within the expression found in the statute “ a lessee,” and was, for that reason, bound to comply with the provisions of the law requiring fences to be erected by the owners or lessees.
By the use of the words “any lessee or other person in possession of its road,” the Legislature evidently intended to visit upon a lessee, or a receiver in possession of the road, the same burden as was east by the antecedent part of the section upon the owner; and the history of the legislation since 1850, referred to in Throne v. *394Lehigh Valley R. Co. (88 Hun, 144) seems to warrant the conclusion that the duty was cast upon a party having the actual possession of the road.
The evidence fails to show that the defendant was in actual possession, or was a lessee of the road, at the time the injuries were occasioned. There is nothing in the case to indicate any negligence on the part of the defendant.
We are of the opinion that the evidence is insufficient to sustain that, the right of recovery against the defendant. We, therefore, think the exceptions are well taken to the refusal of the motion for. a nonsuit and to the direction of a verdict for the plaintiff.
All concurred, except Ward, J., dissented.