
    PETER WILSON, Plaintiff, v. JAMES VAN PELT, Defendant.
    
      Contract reserving growing crops—liability far use of lands—right of ingress and egress.
    
    Exceptions ordered tó be heard in the first instance at General Term, on the coming-in of a verdict in favor of plaintiff.
    Articles of agreement were made between A= of the first part and B of the second part. The said party of the first part, in consideration of the sum of $125 per acre, agreed to sell to the party of the second part, his farm in the town of Brutus, “ excepting and reserving the wooden part of the house, up .stairs and down stairs, and the south half of the garden next north of the house, until the 1st of October, 1870. Said A also reserves, for his own use, all the wheat and rye now growing on said premises, together with sufficient room in the barn to put said wheat and rye into, and thresh the same.” A agreed to allow B, on October 1, 1870, $100 “ for the use of the premises above reserved by him, and which said sum of $100 is to be then applied upon the purchase-money of said premises. * * * In case A shall give to B full possession of said premises,-and shall remove therefrom within three weeks, then the above provision in reference to the rent of said premises shall be inoperative, and the said Van Pelt shall pay to said Wilson the sum of $2,100 instead of the sum of $2,000, on the first day of October, 1870.”
    A, having given up the possession within three weeks, and the defendant (B) having harvested and removed the crops, held, in an action by A for conversion, that the court erred in charging the jury that the plain tiff, was not entitled to recover, as the clause of the- contract relating to the giving up possession within three weeks did not affect A’s title to the crops, but only to the wooden part of the house. The court further held, that when growing crops are reserved as such, the party reserving them is not, in the absence of an agreement to pay, liable for the use of the land on which they grow, and has the right of ingress and egress for the purpose of harvesting and removing them. (Whipple v. Foot, 2 Johns., 418; Stewart v. Doughty, 9 id., 108; Shepard v. Philbeck, 4 Den., 174.)
    
      William Porter, for the plaintiff.
    
      W. E. Hughitt, for the defendant.
   Opinion by

Mullin, P. J.

New trial ordered, costs to abide event.  