H the defendant be liable in this case for the loss of the plaintiff’s horse, it is upon the ground that he has not complied with his covenants in the lease. The learned judge at the circuit so charged the jury. His language was: “It was his [defendant’s] duty to comply with that covenant, and. he is liable, if at all, for not complying with it. It is for you to say, on all the evidence, whether if the worn surfaces had tieen patched ; in other words, whether if he had. complied with that covenant, the horse’s foot would have gone through. If he had complied with it and the horse’s foot would still have gone through, he is not responsible.”
*346[First Department, General Term, at New York, May 5, 1873.Ingraham and Hancher, Justices.]
This was fairly and plainly stating the correct rule as to the liabilty of the defendant. The jury were required, to find that the accident resulted from the defendant’s neglect to make the ordinary repairs which the lease required him to make, before they could return a verdict ' for the plaintiff. The substance of the charge of the judge contained all that the defendant requested should be charged, though not in the identical language of the requests. There is no doubt that if the accident to the horse, occurred because of the want of that repair to the pier, which the defendant had agreed and was bound to make, he is liable for the injury which was thereby occasioned. (Radway v. Briggs, 37 N. Y. 258. Clancy v. Byrne, 58 Barb. 449.) Under the charge of the learned judge at the circuit, the jury must have found that the accident resulted from the delinquency of the defendant, and we do not discover any adequate reason for interfering with the verdict.1 It is sustained by sufficient evidence.
The judgment should be affirmed, with costs.