
    JACOB ABERLE, Plaintiff and Appellant, v. JOHN HENRY FAJEN, Defendant and Respondent.
    landlord and tenant.
    Permission to alter premises by removal op partitions.
    
      Damages in an action for waste.
    
    Two questions were presented to the jury in this case:
    1st. Whether permission had been given to the defendant to remove the partitions;
    2nd. Whether such removal caused any, and what amount of damage.
    The evidence was such that the jury might conclude that there was a license or permission, either in the original lease, or subsequently, from a former owner, to the defendant to make the change, which was binding upon the plaintiff or-ratified or recognized by him when he came into possession,, and therefore the verdict of the jury for the defendant-should be sustained. *
    If a jury finds for a defendant when they should have found' nominal damages for the plaintiff, it furnishes no ground, for a new trial (Stevens v. Wilder, 42 W. Y. 351; Devendorfc. 0. West, 42 Barb. 227).
    The following points from opinion of Freedman, J.:
    This action is analogous to former actions of waste, and. to sustain it plaintiff must show an injury to the freehold or reversion. The jury had a right to look, beyond the evidence as to the cost of restoration. Alterations of this kind are not necessarily acts of. waste. They may be in some instances, and as was. claimed by the defendant in this case, a benefit to the estate. The case having been submitted to the jury by the trial judge more favorably to the plaintiff than he was entitled to, the controversy should not be re-opened.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Decided May 8, 1877.
    
      Appeal by the plaintiff from a judgment entered upon a verdict in defendant’s favor, and from an order denying a motion for a new trial.
    The action is to recover damages for the removal of two partitions in the rear of a store, eight feet eight inches wide, occupied by the defendant as a tenant under a letting from a former owner, and converting the materials. The defendant answers that such acts were by plaintiff’s consent and permission, and were a benefit to the building and the plaintiff.
    
      Simon Sultan, for appellant.
    I. The first request to charge was not embraced in the charge of the court to the jury, and was improperly refused. The charge confined itself in general terms to the question whether there had been a permanent injury to the entire structure, of which the defendant merely held a part. The question really was whether there had been a permanent injury to the premises demised, and whether there was such injury as to the plaintiff. If there was, the plaintiff was entitled to a verdict (See Nottingham v. Osgood, reported in note in Sedgwick on Damages, 6th ed. 167). The request was to charge what the defendant’s rights were under the lease, and that the removal of partitions or the alteration of the premises to something different from what they were, are not such rights. The court, however, only charged “that the building was the inheritance which the owner had a right to have.” A proposition entirely disconnected from the propositions contained in the request (Douglass v. Wiggins, 1 Johns. Ch. 435; 1 Addison on Torts, Am. ed. 280 ; 2 Edm. Rev. St. 344; McGregor v. Brown, 10 N. Y. 114).
    II. The learned judge erred in submitting to the jury the question whether the injury affected the plaintiff’ s freehold permanently. 1. The evidence is undispuled that the partitions were affixed inseparably to the land and were a part of the freehold, and all the material composing the same had been destroyed with the exception of the doors. Defendant could not restore these partitions, he could at most replace them with others of perhaps similar, perhaps inferior material. Here was therefore a permanent injury to the reversionary estate of the plaintiff in the very act of destruction (Voorhees v. McGinnis, 48 N. Y. 278). 2. The act of the defendant being therefore an injury per se, it was not to be determined by the jury, it was a question of law for the court, not of fact for the jury (McGregor v. Brown, 10 N. Y. 117).
    III. The verdict was clearly against the evidence and the charge and direction of the court. 1. The theory upon which the case was submitted to the jury was that a wrong had been committed by the deféndant, for which he was to answer in damages. Two things were required to be done by the jury. 1st. Assess the damages for the simple wrong. 2nd. Instruct the court upon the evidence by finding upon the question wdiether the wrong was a lasting" injury to the freehold. 2. The charge was substantially the direction of a verdict for the plaintiff, and imposed the simple duty to assess damages, according to the measure stated by the court. 3. Instead of doing as directed, the jury returned a verdict of no damages, disregarding the evidence of damage entirely, as well as the instruction of the court, or in other words, answered the simple question how much it would cost to restore the partitions, that it would cost nothing.
    IV. The verdict being clearly against the law, and contrary to the charges and direction of the court and against the evidence, should have been set aside. 1. A verdict is always set aside when it is contrary to the charge of the court (Jacobsohn v. Belmont, 7 Bosw. 14; Ayres v. O’Farrell, 4 Roberts, 668; Clark v. 
      Richards, 3 E. D. Smith, 89). 2. So when there is no evidence to sustain it (Rathbone v. Stanton, 6 Barb. 141).
    
      Charles H. Bailey, for respondent.
    I. A landlord or reversioner cannot recover against his own tenant, lawfully in possession, for altering the condition of the leasehold premises, on any other ground than that of waste (Livingston v. Hayward, 11 Johns. 429 ; Livingston v. Mott, 2 Wend. 605). To sustain this action he must show an injury to the freehold or reversion ; in other words, an injury to his own estate (Addison on Torts, 309-312). The English law of waste, though stricter than our own, has not gone further than to declare that substantial alterations in the form and arrangement of a house, so that it is no longer the same house, is per se an invasion of the proprietary rights of the landlord or reversioner. Such would seem to be the law here also ; and the illustration of the doctrine furnished by a case, is the changing of a dwelling-house into a warehouse (Douglas v. Wiggins, 1 Johns. Ch. 435). Alterations of a less extent are not necessarily acts of waste. Accordingly, it has been held in England, that where a lessee opened a new door in a house, whereby the house was not in any respect weakened, or injured, it was a question for the jury, whether there was or not any injury to the rights of the reversioner (Young v. Spencer, 10 B. & C. 145). In our own courts also, the question in such cases has been made to turn on the point of damage or no damage. “ The very term waste,” says Justice Marcy, “implies the idea of detriment to the landlord or reversioner. Without damage, it would seem there could be no waste” (Jackson v. Tibbitts, 3 Wend. 341; Addison on Torts, 280 note [m]). “If the plaintiff complains of the removal of doors and partitions in the house, he must show that the alterations made were of a permanent character, making a real change in the form and arrangement of the building, or that they deteriorated'the property” (Addison on Torts, 313).
    II. It is not denied there may be acts on the part of the tenant, which imply damage to the freehold, and are per se acts of waste; such as cutting down timber or ornamental trees, taking down buildings or completely changing their character, converting a furze brake kept for game into pasture land, &c., &c. But minor alterations made by the tenant of a building occupied by him, in order to make it more convenient or useful in respect of the very purposes for which it was designed and let, are not in themselves waste. To be so they must be injurious to the freehold; and whether or not they are so injurious is a question of fact for the pry.
    III. In this case the question was so submitted with remarks more favorable to the plaintiff than he was entitled to, and the jury have found for the defendant. The evidence fully sustains the verdict.
    IV. A new trial will not be granted on the ground that the verdict is against the weight of evidence, or contrary to the law and evidence, except on condition of payment of the costs incurred ; and where the court can see that such costs will probably equal or exceed the damages which the plaintiff may recover, a new trial will be refused (Graham on New Trials, 603 ; Exp. Bailey, 2 Cow. 479).
   By the Court.—Curtis, Ch. J.

There was a conflict of testimony between the witnesses, as to whether the replacing of the partitions, and the restoration of the building to its former condition, would cost $35 or $90. The defendant claimed that his change was a benefit to the plaintiff.

Henry Immen, from whom the plaintiff received a deed of the building April 25, 1874, testified that about February, 1874, he let the premises to the defendant, who had possession under the lease when the building was conveyed to the plaintiff, and has since continued in such possession. He also states, that he, while owner, gave the defendant permission to remove the partitions in question. The lease is not in evidence, or shown to have been reduced to writing, and it is not clear from the case whether this permission was a provision of the original lease, or subsequently granted. But there is no question raised, as to the fact of such permission being granted by Mr. Immen, and that the defendant told the plaintiff about May 1 or 2,1874, that he was about to remove the partitions, and that the plaintiff did not when thus informed in such conversation with the defendant, raise any objection to his doing so. The defendant removed the partitions about a week after this, the same evening that he was previously told by the witness Petty, that plaintiff desired him not to remove them until he had seen him. The defendant testified that he “ had nothing to do with Petty,” and appears not to have recognized him or known him as authorized by the plaintiff to act in the matter.

The questions arising upon the issues were passed upon by the jury, under a charge which affords no ground for complaint or exception on the part of the plaintiff.

It is evident the court, in its charge, viewed the question of damages, as one where the jury were to assess the amount between $35 and $90, or to determine whether these amounts were exaggerated. There were two questions presented to the jury by the evidence for their consideration. The first, was whether permission had been given to the defendant to remove the partitions, and the second was whether such removal caused any damage.

The evidence was such, that the jury might conclude that there was a license either in the lease, or subsequently from the former owner to the defendant, to make the change, which was binding upon the plaintiff as a subsequent grantee or recognized or ratified by the plaintiff when he came into possession. This permission was distinctly shown by the former owner, when he testified as to the letting, and without objection.

The evidence is not of a character to call for the granting of a new trial, on the ground that no damages were found by the jury. The damages, if any, were trifling, and in a suit brought where the costs are much greater than the pecuniary amount involved in the controversy, the court cannot entirely overlook the maxim De minimis non curat lex (Exp. Baily, 2 Cow. 479).

The questions of fact were within the province solely of the jury, and the judge did not err in denying the defendant’s motion to set aside the verdict on the ground that it was in conflict with the charge and the evidence.

The jury had a right, in determining the question of damages, to look beyond the mere evidence of the cost of restoration. If they found for the defendant, when they should have found nominal damages for the plaintiff, it would furnish no ground for a new trial (Stevens v. Wilder, 42 N. Y. 351 ; Devendorf v. Wert, 42 Barb. 227).

The judgment and the order denying the plaintiff’s motion for a new trial appealed from, should be affirmed.

Sanford, J., concurred.

Freedman, J. (Concurring).

The defendant was lawfully in possession of the premises under a lease which had not expired. The action to recover damages for the removal of the partitions was therefore analogous to the former action for waste. To sustain such action, plaintiff must show, an injury to freehold or reversion, or, in other words, to his own estate.

There was evidence that should have been submitted to the jury, upon which the jury might have found a license. But that question was not submitted to them, the court holding, in effect, but erroneously, in my judgment, that, as matter of law, no license had been shown.

The case was submitted to the jury on the theory that the plaintiff was under all circumstances entitled to some damages. They were instructed that, if the act complained of constituted a single trespass, which did not injure „the building permanently, the plaintiff was to be paid just simple damages. If, on the contrary, it affected the building permanently, then the court might treble the damages as found by the jury.

As to the damages to be found they were charged as follows:

Now, in order to come to a conclusion of what the plain, simple damage had been in the removal of these partitions, you. will take into consideration the plaintiff’s witnesses. They have given you the damage in the neighborhood of $90. Then you have to turn and look at the defendant’s witnesses, and they have given you $35 or $36. It is for you to say which of these are right, and it is your province to say that both are exaggerated,—on the one hand too much, and on the other too little.”.

And finally they were told to render a separate answer, either in the affirmative or negative, as to whether' or not the removal of the partitions caused permanent ór lasting damage.

The jury found that no damage whatever had been sustained, and they rendered a verdict for defendant.

This verdict was to some extent against the charge of the court, but I am not prepared to say that it was against evidence. The sum of §90, named by plaintiff’s witnesses, and the sum of $35 or $36, named by defendant’ s witnesses, represented their respective opinions as to the cost of the restoration of the partitions. But the jury, in determining the question of damages, had a right to look beyond the evidence of the cost of restoration. Alterations are not necessarily acts of waste. In some instances they may even be, as is claimed by the defendant to have been in this case, a benefit to the estate. Nor did the plaintiff claim to recover for the mere value of the materials which had composed the partitions.

Inasmuch, therefore, as the manner in which the case was submitted to the jury was more favorable to the plaintiff than he was entitled to, and the jury, notwithstanding such fact, have found that he sustained no injury, the controversy should not be reopened. The trial judge seems to have entertained the same view, for he denied plaintiff’s motion to set aside the verdict and for a new trial.

For the foregoing reasons, the judgment and order should be affirmed, with costs.  