The facts having been agreed upon by the parties, it only remains to apply the law. Plaintiff contends that the facts as agreed upon bring the case clearly within the. provisions of chapter 755 of the Laws of 1894, while defendant maintains to the contrary and in his brief states six different grounds why the action cannot be maintained. These grounds will be considered in the order in which they are stated.
It is first urged that the single barbed wire strung , as described "in the statement of facts does not constitute “ barbed wire used in the construction of any division fence constructed or built after September, 1894,” within the meaning of section 1 of chapter 755 of the Laws of 1894.
On this point defendant takes the position that the statute has reference only to division fences to be built or constructed in toto after it went into effect and has no application to the use of barbed wire in repairing division fences then existing. He also argues that the single strand of wire used having been strung from corner to corner on his side of the fence so that it at no point crossed or approached the division line, was not, therefore, a component part of the fence.
At the time the statute in question was enacted there were within the state division fences without number, the location of many of which may never change, and most of which, with some repairs from time to time, will last for many years to come. As compared with the number of old division fences which will be repaired during the next quarter of a century, the number of entirely new ones which will be constructed within the same period, it is safe to say, will be very few. In view of this fact, a construction of the statute in question which would permit the free use of barbed wire in repairing existing division fences while prohibiting its use in such division fences as should be entirely new, would be a practical nullification of" its provisions.
It is true, that, the language of the statute is not as clear as it might be, and a strict literal construction such as defendant con*142tends for, might require a decision in his favor. The suggestion, however, that the statute is in derogation of common-law rights and should, therefore, receive such strict--construction, does not meet with favor. Just what common-law right is invaded by this statute is not clearly pointed out. If the common law gave a man the right to build a division fence of such a character as to prove a source of danger and probable injury to his neighbors’ cattle, the authority so holding has not been called to my attention. The statute requiring the construction of proper division fences may, in some measure, be in derogation of the common law,' but the statute here under consideration prohibiting the construction of dangerous_ division fences is nob The former- statute provides a remedy for a failure to construct, and maintain a proper division fence, but it does not contemplate and, therefore, provides no remedy for the construction of a dangerous division fence. There has always been a remedy, however, for injuries sustained by reason " of the construction of dangerous division fences, but until the enact- ■ memt of the statute now under consideration it was a common-law remedy and not a statutory one. Rehler v. Western N. Y. & P. R. R. Co., 28 N. Y. St. Repr. 311; Roney v. Aldrich, 44 Hun, 320. If the statute in question took away this remedy it could then be said to be in derogation of the common law. But instead of depriving plaintiff in this action of his common-law right, the statute simply enlarges that right by giving him treble damages. The statute is not, therefore, in derogation of the common law and the words “ constructed or built ” should not be strictly and • literally construed. They must, I think, be held to be sufficiently broád in their meaning as to include the word “ repaired,” so that the statute must be interpreted ás though it read “ repaired, constructed or built.” Ho other construction can give effect to the evident intention of the legislature.
There is no merit in the proposition that the single strand of wire strung from comer to corner on defendant’s side of the line was not a component part of the fence. As to stock which might jump over a division fence, a wire so1 strung would be more dangerous than if strung bn the side where the stock were grazing; for in. the latter - case the stock would come in contact with the wire before making the leap and by reason thereof would be quite apt to abandon the attempt, while in the former case their first knowl- ■ edge of the wire would be When they came in contact with it while in the act of leaping.
*143It must be borne in mind that perhaps the only practical purpose which a division fence serves is to keep stock upon them owner’s land. The case here under consideration serves to illustrate the proposition that the dangerous character of a fence does not necessarily add to its effectiveness as a barrier. It should not, therefore, be constructed in such a way as to prove a trap instead of a barrier. It is not going too far then to assume that the legislature in prohibiting the use of barbed wire in the construction of division fences had in view the natural propensity of certain domestic animals to leap fences and intended not only to protect them from injury while on their owner’s side of the fence but also from unnecessary injury, when, acting upon that instinct which moves the brute creation, they might attempt to break over an obstruction, the purpose of which they could not understand.
Defendant’s second ground, that the owner and not the tenant is liable, cannot be upheld. True, the Town Law referred to by defendant imposes upon the owner of the land the duty of building and maintaining division fences, but as has been already pointed out, there is nothing in that statute which furnishes a remedy to an injured party for the construction of a dangerous division fence either by the owner of the land or his tenant. Hence the statutory duty imposed upon the owner of the land to build and maintain a proper division fence cannot be said to carry with it a liability against such owner for damages occasioned by the construction of an improper fence by his tenant. I cannot, therefore, concur in the argument that the words “ any person ” as used in the statute under which this action is brought must be construed as having exclusive reference to the owner of the land. Had such been the legislative intent it would have been very easy to have so expressed it.
The third point, that under the terms of the lease the owner and not the tenant was liable, is also untenable. There is nothing in the lease which creates any relation between defendant and his landlord except the relation of landlord and tenant. Further than this there is nothing in the lease which would justify a finding that the owner contemplated the use of barbed wire by defendant in repairing the division fence in question. The lease does provide that the landlord “ will furnish some wire and posts to repair or make fence with and the lessee is to do the work.” If this language would warrant a finding that the division fence in question *144was within the'contemplation of the parties, still its meaning cannot be so extended as to include and warrant repairs such as were made and which caused the injury. Ko reference is made to barbed wire in the lease and the only fence contemplated therein was to be constructed with wire, strung on posts and not a single strand of barbed wire strung as described in the agreed statement of facts. But even if the lease expressly provided for the stringing of 'a wire along the rail fence as was done by defendant, the landlord furnishing -the wire and the .defendant doing the work, the act of defendant in thus stringing the wire would not be the act of an agent, but would be the act of the tenant in the performance of his contract. Under such a provision, it may be that the landlord would be liable as well as the tenant, but the latter would certainly be liable.
Defendant’sfourth ground, that the owner was a necessary party defendant, is without merit. The action sounds in tort, and although the owner might be jointly or jointly and severally liable with defendant, yet, in all such cases it is optional with the plaintiff. to sue all or any of those who have committed the wrong. Another answer .to this objection would be, that the nonjoinder was not raised by the answer.
Defendant’s fifth ground, that the statute in question has been repealed by chapter 524 of the Laws of 1896, may be passed with the simple statement that the latter law simply .modifies the former by permitting the use of barbed wire in division fences when constructed as therein provided, without the consent of the adjoining owner, but does not repeal or attempt to repeal the statute under consideration.
The sixth and last ground urged by defendant, that the statute in question is unconstitutional, does not impress me'that way.
It follows that judgment should be entered in favor of plaintiff for the amount agreed upon in the statement of facts.
Judgment for plaintiff.