Two questions arise in this case. First. Whether upon a fair construction of 1 R. S. 353, § 30, the defendant was bound to maintain a proportion of the fence erected by the plaintiff, and was liable to him for the expense of erecting it. Second. Whether, if not liable under the statute, there was any evidence upon the trial tending to show that the defendant had assented to the erection of the fence, or promised to pay the plaintiff for it after it was erected by him.
*161I. I incline to the opinion that the statute referred to was intended to apply to cases where lands have been partially fenced as well as those in which the owner chooses to let his land lie altogether in commons. The language of the statute is quite broad and comprehensive, and the words <£ shall choose to let such land lie open” includes any case where the owner does not choose to enclose his land entirely. Whatever, therefore, may have been the general object of the statute in reference to compelling owners of cattle to keep their cattle upon their own premises, and requiring them to share equally in the burthen of keeping and maintaining division fences, it has made an exception in favor of those who choose to let their land lie open; and it by no means destroys its force because perhaps a case may occasionally arise where the owner of adjoining land who desires to avail himself of that exception finds his land fully enclosed by reason of the action of adjoining owners in fencing their land. I think, therefore, upon a fair construction of the statute, the defendant was under no obligation to maintain a proportion of the division fence in question. The conclusion to which I have arrived, as to the meaning of the statute, renders it unnecessary to examine whether the action can be maintained without a division of the fence being made by the fence viewers, according to the provisions of 1 R. S. 353 and 354.
II. The solution of the second question depends entirely upon the fact whether there was any evidence to sustain the verdict upon the theory that the defendant admitted his liability and that the fence was made for his benefit. The-evidence was hardly sufficient to establish a liability. The remarks of the defendant were mainly in answer to interrogatories put to him by the plaintiff, and were expressly qualified by an avowal that he would pay if obliged to do so. This cannot be regarded as assenting to the erection of the fence, so as to make him liable for the expense. Even if it may be inferred that the defendant was willing that the plaintiff should fence the land at his own expense, it is very *162evident that he did not intend to incur any liability. There was no promise to pay; no acknowledgment of liability; no such approbation of the act of the plaintiff from which a promise might be implied. On the contrary, the defendant expressly denied his obligation to pay for the fence. His language was equivalent to saying, I am not bound, and refuse to pay for what you have done gratuitously and without my request, knowledge or consent. I think there was no evidence from which a jury were authorized to find an acknowledgment of liability or a promise to pay the plaintiff for making the fence. With the view I have taken, the question whether the verdict was for more than the defendant’s proportion of the fence is unimportant.
[Albany General Term, December 1, 1862.The judgment of the county court should be affirmed.
Hogeboom, Peckham and Miller, Justices.]