
    John Seton, Resp’t, v. Heman Clark, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Use and occupation—Injury to heal estate.
    In an action for use and occupation of real estate, and for injury to the property by filling the same with street sweepings and refuse, the plaintiff claimed that defendant’s entry was unauthorized, as he had refused to let the premises; while defendant claimed that there was a lease, and that rent had been tendered and refused. Judgment was rendered in plaintiff’s favor, including damages for the filling. Held, no error; that a demand of the use and occupation was right if there was a trespass, and did not prevent a recovery of the agreed price if there was a contract; that if there was a mere contract of lease, the action could be maintained for the injury to the property not authorized by the contract, and that the court was right in refusing to charge that the jury must find for defendant if there was a contract.
    Appeal from judgment.in favor of plaintiff, entered on verdict.
    
      M T. Lovatt, for app’lt; J. Stewart Moss, for resp’t
   Barnard, P. J.

The plaintiff owns certain lots in the city of Brooklyn. The defendant entered into the possession of these lots. While the defendant was in possession of the premises he filled in the lots with refuse filling. The plaintiff claims that the -entry by defendant was without his permission, and that the filling injured the lots, and he demands judgment for the use and occupation, and for the injury resulting from the filling.

The defendant avers a contract at five dollars per month, and that the use was to be for his purposes. The evidence was as conflicting as the pleadings. There was proof tending to show that a lease was refused by plaintiff, and that the entry was consequently wrongful, and the filling injurious and unauthorized.. The defendant produced evidence that there was a lease for fifteen dollars per month, and the question of fact went to the jury, who found for the plaintiff. No rent had been paid. It was claimed that rent had been tendered and refused. There is no basis for a reversal of the judgment. The demand of the use and occupation, of the lots as a part of the compensation for the-trespass was right if there was a trespass; and, if there was a contract, such a claim would not prevent a recovery of the agreed price, if one was-proven.

The refusal to charge that the jury must find for the defendant, if there was a contract, was right. The action must be sustained under the second cause of action, if there was a mere contract of lease and an injury done to the property which the contract did not authorize. The proof showed that the lots were filled in where the houses are usually built in cities; that the filling was-, some ten feet deep.

The quantity of refuse was proven, and what it would take to excavate it was also proven. Every fact necessary for correct, judgment was given.

The verdict of the jury is fully sustained by the evidence, and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  