
    Luis Preiser, as Administrator, etc., of Fannie Preiser, Deceased, Appellant, v. Michael Wielandt and John Roth, Respondents.
    
      A tenant, whose wife is ill at the expiration of his term, is entitled to a reasonable time to vacate the premises—the rule that no damages are recoverable in case of . fright is applicable only to an action for negligence. x
    A tenant, whose wife is seriously ill at the expiration of the lease, is entitled to a reasonable time in. which to vacate the premises without unnecessary risk to her life; and where the landlord, with full knowledge that the tenant's wife, who was pregnant, was confined to her bed suffering from heart disease, commenced tearing down the house, the work being acpompanied by noise, disturbance, excitement and dust, which aggravated the illness of the wife, who, although she was removed from the house the following day, died about a week later after suffering a miscarriage, the landlord is liable for the damages resulting from her death, if it was the natural and necessary consequence of his wrongful act.
    The rule that no recovery can be had for injuries due solely to fright and excitement, unaccompanied by actual, immediate, personal injury, applies only to actions based upon negligence and not to cases of willful tort.
    
      Appeal by the plaintiff Luis Preiser, as administrator, etc., of Fannie Preiser, deceased, from a judgment of the Supreme Court ' in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 19th day of January, 1899, upon the dismissal of the complaint, by direction of the court, after a trial at the Hew York Trial Term.
    This appeal was transferred from the first department to the second department.
    
      Frank Herwig, for the appellant.
    
      Charles C. Nadal, for the respondents.
   Hirschberg, J.:

This action is brought to recover damages because of the death of plaintiff’s intestate occurring as the result of alleged negligent and wrongful acts of the defendants. ;

The defendants are the owners of premises Ho. 6.05 East Sixth street, in the borough of Manhattan, city of Hew York. : On the 5th of May, 1898, the plaintiff leased apartments in these premises for the. period of one month, paying the rent in advance and moving in with his family, comprising his wife, the decedent, and their child. The plaintiff’s wife, -who had previously been a strong, healthy woman, able to do housework and to carry on the business of dressmaking, was taken ill the latter part of the month, and was confined to her bed. She was suffering from heart disease and was also advanced five months in pregnancy. On the thirtieth of May she informed her husband that during his absence some men had called and informed her that they would have to move the first of the month, whereupon the husband called on the defendant Wielandt, informed him of his wife’s condition, and exhibited to him a certificate of the family physician to the effect that Mrs. Preiser was suffering from heart disease and its consequences and was unable to leave her bed without danger. The defendant replied: “I don’t care; I gave' my orders. We have to build the house and you have to move.” The fifth' of June, one month from the date of hiring fell on Sunday. On the following day men commenced tearing down the house, acting under the defendants’ orders. This created considerable noise, and brought a large quantity of dust into the sick room, which, besides bringing on violent fits of coughing upon the part of the plaintiff’s wife, made her excited, nervous and hysterical. The plaintiff again went to see Mr. Wlelandt, told him of the sick condition of his wife, and asked him to come into the house and verify the fact. He said: “ I can’t move; I would like to move, but it is impossible.” The defendant replied : “ I have given orders to my men to tear down the-house and you have to move.” The process of tearing down the house was continued with the necessary accompaniments of noise, disturbance, excitement and dust, diming which, and on the following day, the plaintiff managed to remove his wife to other premises. Her condition, however, became so serious that she was removed to a hospital on the succeeding Saturday, where she suffered a miscarriage that night, and died three days afterwards.

At the close of the plaintiff’s direct examination in the course of •which these facts were .elicited, the learned trial court intimated that there could be no recovery, and for the pupose of presenting the question on appeal dictated offers, which the plaintiff’s counsel accepted, designed to supplement the case with medical evidence tending to establish the physical condition of the wife at the time - of her removal, and her subsequent miscarriage and death, as the result of the défendants’ acts in tearing down the house.

The plaintiff asked to go to the jury on all the questions specifically which were presented by the pleadings- and the proof, which request was denied, and to which denial he excepted. The complaint was then dismissed, apparently on the ground that the plaintiff and his family had no right to remain in possession of the leased premises on the sixth day of June when the work of demolishing the building commenced. The court said: Of course, if they were obliged to- wait that day they would have been obliged to wait every day for the rest of the four months, would they not?-” The plaintiff’s attorney replied : Ho, because she was not before that suffering from any effects of a premature birth, blit from the result of heart failure which would have passed off.” To this the court responded : “ Suppose they would have waited that day, they would have to wait from day to day. If your client had a right to demand delay for that day, then he had a right to demand delay for every day thereafter as long as she remained sick,.. and if she remained sick sixty days then he had a right to demand that delay.”

The status of a tenant remaining in possession after the term by reason of the sickness either of himself or of a member of his family was settled by the Court of Appeals after this trial in the case of Herter v. Mullen (159 N. Y. 28). In the prevailing opinion it is said (p. 39) that “ The mere fact that the tenant or some member of his family is obliged to remain in a room in the house after the expiration of the demised term may not necessarily amount to a trespass. Whether it does or not must depend upon circumstances. If he is detained there by the act of God or of some superior legal power, bisóme unavoidable necessity, he is not ordinarily deemed to be a trespasser. A trespass presupposes' some wrongful act towards the person or property of another. If the tenant in this case actually held over, the plaintiff could maintain ejectment against him, but since his intention to remove'on the day the lease expired is clear,'and this purpose .was defeated only by the dangerous illness of amember of his family, it would, I think, be difficult to say that he had such a possession of the house as would support an action of ejectment, and the same facts and circumstances that would protect him from such an action would also defeat the present claim, which is based upon the theory of an implied agreement to lease for another year.”

It does not clearly appear whether the work of demolishing the building commenced before noon of June sixth. The circumstance is not controlling. The plaintiff and his family were rightfully in the premises up to that hour, and if they were then detained by serious illness they were still entitled to a reasonable opportunity to vacate the premises without unnecessary risk to life. They were not trespassers. The defendants had ample remedy by legal process for their summary removal, aud so far as the assault upon the house was designed to accomplish that removal by force, the act was wrongful and unjustified. It was made with full knowledge of the condition bf the plaintiff’s wife, and for all the natural and necessary consequences of their wrongful act, the defendants are liable in this action.

The point is raised, however, by the respondent that under the decision in Mitchell v. Rochester Railway Co. (151 N. Y. 101) there can be no recovery because there was no actual, immediate personal injury suffered by Mrs. Preiser, and that her miscarriage and death were due solely to fright and excitement. The case referred to has no application to this one. It applies only to actions based on negligence and not to cases of willful tort. In that case it was held that no recovery could be liad for mere fright occasioned by negligence; and as no action would lie for the fright alone, it necessarily followed that none could be maintainéd merely because the fright was followed by serious consequences. If the act complained of was not in itself actionable, the gravity of the consequences would not make it so. In this case, however, the act of the defendants was in itself wrongful. It was a willful and violent trespass upon the plaintiff’s house for which an action will lie; and "if the death of the plaintiff’s wife can be clearly and directly traced to it as a natural and necessary consequence which they might, or should, have reasonably anticipated, the defendants are liable even although no actual blow was struck in the course of the destruction of the building.. The defendants knew her condition and the risk to her which was involved in their contemplated act, and it would be ridiculous to say that without the shadow of a right, they could tear the house down from over her head with no liability for the consequences unless she chanced to be hit by a falling beam.

In Spade v. Lynn & Boston Railroad Co. (168 Mass. 285), following the decision in Mitchell v. Rochester Railway Co. (supra), in holding that there could be no recovery for bodily injury caused by fright and mental disturbance, the court said (p. 290): “ It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Mor do we include cases of acts done with gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor’s mind.” The rule does not include cases of wanton wrong, nor apply to the acts of a trespasser. As was said in Snow v. Pulitzer (142 N. Y. 263, 269), where the landlord took down a party wall and deprived his tenant of its support, the defendant was a trespasser and a wrongdoer, and is just as responsible for the consequences of his acts as he would have been if he had removed the roof from the building or entered the plaintiff’s store and physically expelled him,” (See, also, Serwe v. Northern Pac. R. Co., 48 Minn. 78, and Sloane v. Southern Cal. R. Co., 111 Cal. 668.)

The judgment should be reversed and new trial granted, with costs to abide the event.

All concurred. -

Judgment reversed and a new trial granted, costs to abide the event.  