
    Elizabeth Stilwell, individually and as Executrix of Lena Stilwell, deceased, Resp’t, v. August Zinsser, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Pleading—Cause of action for injury to reversion—When stated.
    The plaintiff alleged ownership of a farm in Kings county, and that defendant maliciously destroyed and injured and defaced the grass and sod of plaintiff and carried it a"way. The farm at the time of the acts complained of was in the possession of a tenant. Held, there "was a cause of action stated for injury to the reversion.
    3. Trial—Proof of cause of action for injury to land—Dismissal of complaint.
    On the trial the plaintiff proved her title and the wrongful cutting and carrying away the sod, the amount taken and its value. Held, that a cause of action had been made out for injury to the freehold, and that the motion for a dismissal of the complaint was properly denied.
    3. Same—Variance—Code Civ. Pro., § 1207.
    Plaintiff failed to prove that the acts were maliciously done. Held, there was no variance between the complaint and the proofs, and that the case did not fall within Code Civil Procedure, § 1207.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Kings county circuit and from an order denying a motion for a new trial made on the judge’s minutes.
    The plaintiff was the owner of a certain farm in the town of Gravesend, county of Kings, state of New York, which she leased to one John Steinninger from year to year, who Eved in the house upon the premises and cultivated the land. This tenant, Steinninger, sold to defendant, and received money in payment therefor, eighty-five loads of sod ab fifty cents a load, and directed defendant to come and get it on his premises, and he, the tenant, furnished him with the tools for cutting the same. For these acts of the defendant under the Ecense of Steinninger, the tenant of the plaintiff, the plaintiff brought suit against the defendant and declared in subdivision 2 of her complaint as follows:
    “ That at divers times between the first day of July, 1884, and the 20th day of August, 1884, the defendant maliciously and wantonly destroyed, injured and defaced the grass and sod, the property of the plaintiff, growing on the land of said plaintiff, to wit: on the highway immediately adjoining the above-described premises, by cutting and removing therefrom about one hundred loads of grass, sod and loam, of the value of $200; whereby the defendant, by force of the statute for the more effectual prevention of wanton and malicious mischief, became liable to the said plaintiff in the sum of $1,000.”
    
      Hubbard & Rushmore, for resp’t; M. L. Towns, for app’lt.
   Pratt, J.

The plaintiff alleged ownership of a farm in Kings county, and that defendant maliciously destroyed and injured and defaced the grass and sod of plaintiff and carried it away. It also alleged that under chapter 451, Laws of 1877, the defendant became liable, etc., and demanded damages in $1,000. The farm, at the time of the acts complained of, was in the possession of a tenant who had given defendant license to enter and carry away the sod.

Treating all the complaint stated about the statute as surplusage, there was a cause of action stated for injury to the reversion.

On the trial, the plaintiff proved her title and the wrongful cutting and carrying away the sod, the amount taken and its value. Defendant then moved for a dismissal of the complaint.

The court ruled that the case did not come within the statute, but that a cause of action had been made but for injury to the freehold.

In such ruling there was no error. The fact that the plaintiff supposed that the case was within the statute, and so alleged and prayed for relief accordingly, was wholly immaterial.

There was no variance between the complaint and the proof; she simply failed to prove that the acts were maliciously done, and therefore the case did not fall within the statute. Code Civ. Pro., § 1207; Murtha v. Curley, 90 N. Y., 372, 377.

The defendant could not have been surprised, for he was fairly apprised of _ everything the plaintiff could claim. Neither the complaint nor answer required any amendment.

We have examined all the exceptions and find no error sufficient to warrant the granting of a new trial.

Judgment affirmed, with costs.

Barnard and Dykman, JJ., concur.  