
    Andrew W. Ketcham et al., App’lts, v. Henry Newman et. al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 6, 1886.)
    
    
      1. License—When estocadle.
    A license to enter upon land does not purport to convey an interest in land, and so long_ as it remains executory it is revocable, and this is so, even though the licensee acting thereunder may have incurred expense.
    3. Same—Exeoutoby.
    It was held that if a license had been granted to enter upon land for the purpose of shoring up an adjoining building, yet this license remained executory, and, therefore, revocable at pleasure as long as the shoring up was proceeding.
    3. CONTBACTOBS—UNDEB CONTEOL OF EMPLOYEE.
    When party exercises control over contractor, the case is not within the rule as to independent contractors.
    4. Tbespass—Evidence.
    In an action for trespass, evidence that the defendant exercised care in the performance of the acts complained of is irrelevant.
    5. Same—Damages.
    Evidence of the damage done to goods of the plaintiffs, and of the ream of goods by customers, may be given to show the extent of damages suffered by reason of a trespass.
    
      Hoes & Morgan, for resp’t; Stern & Meyers, for app’lt.
   Per Curiam.

The plaintiffs were co-partners in business and tenants and occupants of the store 632 Broadway, in 1882, engaged in the business of importing and jobbing millinery goods. The defendants, Newman & Cohn, were the owners of the adjoining building, 630 Broadway. In February, 1882, the defendants tore down that building and commenced excavating upon the lot for the purpose of rebuilding. A contractor, named Goodwin, was employed by the defendants Newman & Cohn, to shore up the building 632 Broadway. This action was brought for trespass to recover damages, which the plaintiffs claimed to have sustained by reason of the acts of the defendants in the of shoring up the building, 632 Broadway.

The defense was a license given by the plaintiffs, and that the plaintiffs had suffered no damage. The plaintiffs denied the granting of any license, and claimed that if any license was given it was revocable, and that they had revoked it.

The jury found for the plaintiffs. The court charged that if there was no license to do the acts complained of, or if such license had been given, and it had been revoked, the plaintiffs could recover.

The defendant’s- claim that the court erred in charging that if a license was given to enter the plaintiff’s premises to shore up the wall, such license might be revoked by notice, even though the defendants had acted upon the license, and inserted needles for the support of the wall in pursuance of that license, and in that it refused to charge that such a license could not be revoked under such circumstances by mere notice.

“A license to enter upon land does not purport to convey an interest in land; it is substantially a promise without any consideration to support it, and while it remains ex-ecutory, maybe revoked at pleasure, but when executed, it, in general, can only be revoked by placing the other party in the same situation in which he stood before he entered upon its execution.”

This is the rule in Munford v. Whitney (15 Wend., 380), and this is the case upon which the defendants seem to rely. It does not support their position, because the license in this case, if any was granted, remained executory so long as the shoring up was proceeding, and was therefore revocable at pleasure, as to acts thereafter to be done; and this is so, even though the licensee, acting under the license, may have incurred expense. Whoever acts under a parole license which is revocable, proceeds subject to the contingency that it may be revoked, and he be without remedy as to any expense which he may have incurred. McCree v. March, 12 Bay, 213; Wood v. Leadbitter, 13 M. & W., 838.

It was not error for the court to charge the jury that if Newman & Cohn exercised acts of control over the defendant Goodwin, either in the front or rear part of the wall, they were thereby taken out of the rule as independent contractors. This was objected to, upon the ground that there is no evidence of such control or exercise of control. We find such evidence at folios 90, 91, 207, 210, 218, 231, 261, 262, 295, 299.

The court charged the jury that if the wall of plaintiff’s building had stood twenty years, it might be presumed to be a party wall. The doctrine of Schile v. Brokhahus (80 N. Y., 618) is that an old wall from long use may be deemed a party wall. Although this charge is not precisely within the rule laid down in that case, we do not think the defendant was in any way injured by it, and it is very doubtful if the question whether or not the southerly wall was a party wall, had any influence on the finding of the jury. There is, however, sufficient uncontradicted evidence in the case that the wall for fifty or sixty feet was a party wall. One witness says there was a party wall for fifty feet; another says there was a party wall fifty or sixty feet which stood part on 630 and part on 632. The whole southerly wall is shown to have been in use for more than twenty years, and exhibit R, admitted without objection, shows the southerly wall to be a party wall.

It was not error on the part of the court to exclude evidence that the acts complained of were carefully done under a license from the plaintiff, in view of the character of the action. The' action being for trespass, no question of negligence arises, or can arise in the case.

No error was committed by the court in excluding the question to the witness Stebbins: “During 1884 and 1885, have you been with the firm merely on a salary V

The witness ceased to be a member of the firm in 1882. He testified that he could not say what the sales were in 1883 and 1884 without looking at the books. We do not think the question was important, as claimed by defendant’s counsel, as a test of fairness.

The exceptions to the admission of evidence as to damage •and as to the amount of damages, do not appear to us to be well taken.

The first exception relates to damages which are, it is true, outside of the bill of particulars, but which are within the complaint, where the plaintiffs claim damages for being interfered with, hindered and embarrassed in the conduct and the carrying on of the business.

The other evidence has reference to the effect of the damage done the goods of the plaintiffs upon their sales, "and to the return of goods by their customers, and was admissible as evidence from which the jury might form an estimate of the damages suffered by the plaintiffs by reason of the trespass. For the purpose of enabling the jury to judge of the extent of their injury, the plaintiffs had a right to place the evidence before them, so that they might form a judgment as to the extent of the plaintiffs’ damages.

We find no error of law committed on the trial which calls for a reversal of the judgment, and it must therefore be affirmed.  