
    Charles Eten, Respondent, v. Cornelius W. Luyster et al., Appellants.
    Defendants became the owners in fee of certain premises, which had been leased to M. for a specified term, with a clause in the lease that the tenancy should terminate at the option of the landlord, after sixty days’ notice. M. had sublet a portion of the premises to plaintiff. M. subsequently, in consideration of 0300, canceled his lease, waived notice to quit, and agreed to vacate. By virtue of a warrant, issued in summary proceedings, instituted by defendants, who claimed the right of possession under the surrender, plaintiff's property was removed from the premises. The proceedings were thereafter reversed. In an action under the statute (2 R. S., 516, § 49), to recover damages, held, that there being no prohibition against subletting in the lease to M., the plaintiff acquired a valid term, subject to the conditions of the original lease to M., and of his own ; that the rights of plaintiff were not affected by the surrender; that defendants thereby became his immediate landlords, with only such rights as M. would have had to the possession before the expiration of the term ; and that, by their forcible dispossession of plaintiff, defendants became liable as trespassers.
    (Argued February 23, 1875;
    decided March 23, 1875.)
    Defendants tore down and destroyed a building built by plaintiff on the premises. Plaintiff also gave evidence tending .to show that he had a sum of money, in a box, in said building, which was lost in the removal. Meld, that plaintiff was not bound to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where defendants placed them, looking to them for their value ; that plaintiff was entitled to recover for all losses occasioned by the trespass, including the destruction of the building, the loss of the money, and the value of the unexpired term ; that, although the money was kept in an unusual place, and defendants may not have suspected its presence, yet that they were liable for its loss, which was the direct result of then- acts.
    Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 5 J. & S., 486.)
    This was an action under the statute. (2 R. S., 516, § 49.)
    On the 16th of July, 1868, one John Milhan conveyed to defendants certain premises, situate in the city of Hew York. At that time, one Morrison had a lease of the premises, with an unexpired term of about one year. The lease contained a clause providing for the termination of the lease, at the option of the landlord, after two months’ notice. Plaintiff was in possession of a portion of the premises, under a lease from Morrison, for a year. On or about July 26th, 1868, Morrison, in consideration of the sum of $300, executed and delivered to defendants an instrument, the material part of which, after reciting the consideration, was as follows: “ I hereby cancel said lease, or agreement, and waive any further notice, and agree to vacate said premises on or before July 1 ( ), a. d. 1868, and give the full possession thereof.” On or about July 29th, 1868, defendants commenced summary proceedings to recover possession, on the ground of a holding-over after a termination of the lease, in which plaintiff was made a party. He appeared by counsel, and asked permission to file a counter-affidavit, which was refused. The justice decided in favor of defendants, and issued a warrant against all the parties in possession, including defendants. By virtue thereof, defendants were put into possession, and, in the absence of plaintiff, they removed from the premises his personal property, and tore down and destroyed a building built by him upon the premises. One part of this house had been used by plaintiff.as a stable, and his evidence tended to show that he kept, in a tin box, inside a feed-box, in the stable, a sum of money, about $2,000. This was lost in the removal. This evidence was received under objection. The proceedings were subsequently taken to the Supreme Court, by certiorari., where the judgment was reversed.
    The court charged, in substance, among other things: That, if the jury found that defendants acted in the matter, under color of the summary proceedings, then they were liable in damages to the plaintiff, and the jury must consider to what extent the plaintiff has suffered from their act. Also, that the right of sixty days’ notice, reserved to Morrison in his lease, of right belonged to the plaintiff, whether he had knowledge of it at the time or not. To which defendants’ counsel duly excepted.
    The defendants requested the court to charge that, as a matter of law, the putting of a large sum of money in a feed-box, and leaving it there in that stable, was not such due care as the law requires a man to take of money to' enable him to saddle the loss upon any party who has not taken the same. This was refused, and the defendants excepted.
    The court did charge on this subject: “ It is for you [the jury] to consider all the circumstances of this case ; and, in view of the testimony as to this man’s position and habits, and his manner of conducting business, and, in the light of all the evidence before you, to pass upon the probability or improbability of an intelligent man in his condition keeping his money in this way. It is not for me to say that a man should have done so and so with his money. It is for you to judge whether he took such a course as a man in his class of life, in that kind of business, and with his opportunities for knowledge, would reasonably take under such circumstances. You are to be guided by the facts and circumstances in determining this question.” And to- this the defendants excepted.
    Further facts appear in the opinion.
    
      Wm. Henry Arnoux for the appellants.
    Plaintiff having held over his term was a trespasser, and was liable to summary expulsion without notice. (Hayling v. Oakley, 8 Exch., 545 ; Schuyler v. Smith, 51 N. Y., 309 ; Conway v. Stark-weather, 1 Den., 113; Rowan v. Lytle, 11 Wend., 616; Allen v. Jacquish, 21 id., 628-631; McKay v. Mumford, 10 id., 353; Garner v. Hannah, 6 Duer, 271; Smith v. Littlefield, 51 N. Y., 541; Parmlee v. O. and S. R. R., 6 id., 74-81; Nichols v. Williams, 8 Cow., 13-15 ; Witt v. Mayor, etc., 6 Robt., 449; Danforth v. Sargeant, 14 Mass., 491.) Defendants were entitled to enter and eject plaintiff without being liable to him in damages. (Jackson v. Farmer, 9 Wend., 201; Hyatt v. Wood, 4 J. R., 150; Ives v. Ives, 13 id., 235; 3 Black. Com., 174; Taylor on L. and T., §§ 523, 531; Livingston v. Tanner, 14 N. Y., 66 ; Wilde v. Cantillon, 1 J. Cas., 123; Jackson v. Morse, 16 J. R., 200; Harvey v. Brydges, 14 M. & W., cited 12 Am., 95; People v. Fields, 1 Lans., 242; Curl v. Lowell, 19 Pick., 25; Sampson v. Henry, 13 id., 36; Mugford v. Richardson, 16 Al., 76; Minor v. Stevens, 1 Cush., 485; Meader v. Stone, 7 Metc., 147; Curtis v. Galvin, 1 Al., 215; Walton v. File, 1 Dev. & B., 567; Overdeer v. Lewis, 1 W. & S., 90; Frible v. Frame, 7 J. J. Marsh., 599; Johnson v. Hannahan, 1 Strobh., 313 ; Burling v. Read, 11 Q. B., 904; Harvey v. Brydges, 14 M. & W., 437; Blades v. Higgs, 10 C. B. [N. S.], 713; Pollen v. Brewer, 7 id., 371; Davison v. Wilson, 11 A. & E. [N. S.], 890; Davis v. Burrell, 10 C. B., 821; Patrick v. Colerick, 3 M. & W., 483; Wash. R. P., 395 *-397 *; Sterling v. Walden, 51 N. H, 217; 12 Am., 80.) The judge erred in charging that the right to sixty days’ notice, reserved to Morrison in the lease, of right belonged to plaintiff, whether he knew of it at the time or not. (McFarland v. Watson, 3 N. Y., 286; Dart. Col. v. Clough, 8 N. H., 22; Jenness v. Alexander, 1 Hilt., 154; 1 Wash. R. P., 449, pl. 5; Holford v. Hatch, 1 Doug., 183; Earl of Derby v. Taylor, 1 East, 502; Sparkes v. Smith, 2 Vern., 275; Pilkington v. Shaller, id., 374; Taylor on L. and T., § 448; Comyn on L. and T., 277; 1 Furlong on L. and T., 493; 1 Platt on Leases; Campbell v. Stetson, 2 Metc., 504; Wms. on R. P., *376; Gault v. Jenkins, 12 Wend., 488; Hayden v. F. S. M. Co., 54 N. Y., 224.) Plaintiff being a trespasser his only right of action against defendants was for damages sustained from the neglectful removal of his personal prpperty. ( Wilds v. H. R. R. R. Co., 24 N. Y., 430; Gonzales v. N. Y. C. and H. R. R. R. Co., 38 id., 440; Grippen v. N. Y. C. R. R. Co., 46 id., 51; Baxter v. T. and B. R. R. Co., 41 id., 502; Hamilton v. McPherson, 28 id., 76; Milton v. H. R. S. Co., 37 id., 210-214; Rood v. N. Y. and E. R. R. Co., 18 Barb., 88.) Plaintiff must establish that he was free from contributory negligence. (Gonzales v. N. Y. C. and H. R. R. R. Co., 38 N. Y., 440; Horden v. Dalten, 1 C. & P., 181; Flower v. Adam, 2 Taunt., 314; Miller v. Mariners' Ch., 7 Greenl., 51; Loker v. Damon, 17 Pick., 284; Thompson v. Shattuck, 2 Metc., 613; Davis v. Fish, 1 Iowa, 407; Cook v. Soule, 11 Alb. L. J., 65; Levin v. Russell, 42 N. Y., 251-256; Schular v. H. R. R. R. Co., 38 Barb., 653; Doorman v. Jenkins, 2 Ad. & Ell., 256; Booth v. Wilson, 1 B. & Ald., 59; Tracy v. Wood, 3 Mason, 132.)
    
      James Clark for the respondent.
    Plaintiff’s tenancy had not expired at the time of the dispossession. (Tuttle v. Jackson, 6 Wend., 213; Grimstone v. Carter, 3 Paige, 421; Gouverneur v. Lynch, 2 id., 300; Bk. of Orleans v. Flagg, 3 Barb. Ch., 316 ; Davenport's Case, 4 Coke, 492, and notes.) The lease from Morrison to plaintiff being for the whole term of the demise operated as an assignment and not as an under-letting. (Bedford v. Terhune, 30 N. Y., 453; Taylor on L. and T., §§426, 443; 2 R. S. [Edm. ed.], 193, § 6; Van 
      
      Rensselaer v. Bradley, 3 Den., 138; Astor v. Miller, 2 Paige, 68.) Plaintiff being Morrison’s assignee was entitled to the benefit of the covenant that the assignor’s term could not be ended within the year without two months! written notice. (Spencer's Case, 1 Smith’s L. Cas., 137, and notes; Norman v. Wells, 17 Wend., 136; Taylor’s L. and T., § 445; 1 R. S. [Edm. ed.], 690, §24.) Even had the required notice been given it would not, ipso facto, have terminated the tenancy. (Oakley v. Schoonmaker, 15 Wend., 228; Beach v. Nixon, 9 N. Y., 35.) Plaintiff’s right to remove the building was not lost or affected by his taking a new lease of the premises. (Loughran v. Ross, 45 N. Y., 792.) The request to charge that the burden of proof is upon plaintiff to show that he was free from negligence was properly refused. (De Benedetti v. Manchin, 1 Hilt., 213.)
   Allen, J.

The plaintiff was, at the time of the forcible entry by the defendants, and the commission of the wrongs complained of, in possession of the premises, as the tenant of one Morrison, under a hiring for a term which had not expired. Morrison was the immediate lessee of the owner (to whose title, in fee, the defendants had succeeded), under a hiring for a year, by written lease, containing a covenant, by the lessee, to vacate the premises on having two months’ notice, in writing, and being paid $200, as an equivalent for moving and giving up the lease.

By an instrument, under seal, bearing date 26th of July, 1868, but which, it is claimed, was executed in June, Morrison, in consideration of $300, canceled the lease to him, and waived any further notice to quit, and agreed to vacate the premises on or before the 1st day of July, 1868. On the first or second day of August, the defendants entered upon the premises occupied by the plaintiff, tore down and ruined a building which the plaintiff had erected thereon, and removed his chattels and personal property. There being n°o prohibition against subletting in the lease to Morrison, he had a right to sublet the whole or any part of the premises. {Jack son v. Silvernail, 15 J. R., 278; Same v. Harrison, 17 id., 66; Roosevelt v. Hopkins, 33 N. Y., 81.) The plaintiff, the sublessee, by the contract of hiring, acquired a valid term in and a right to the possession of the part of the demised premises let to him for the time agreed upon, subject, only, to be defeated by the expiration of the term of Morrison, or a re-entry by the owner of the fee, and supreme landlord, for some condition of the demise broken. He held the premises, subject to the conditions of the original lease to Morrison, and the conditions of his own hiring, and, with these limitations, his right to hold for the term granted to him was perfect.

There was no breach of the condition of the hiring to the plaintiff, and his immediate landlord and lessor had no right of entry, or to dispossess him. The term of Morrison had not expired, and there was no breach of condition, or default on his part in the payment of rent, or the performance of any other act entitling his landlord to re-enter and dispossess him. There was no action by or between the original lessor and lessee, under the clause of the lease entitling the lessor to the possession on a notice of two months and the payment of a specified sum of money. A proceeding under that provision would have put an end to the term of Morrison, and the right of the plaintiff, his lessee, would have fallen with the expiration of that term. It was not technically accurate to charge the jury that the right of sixty days’notice, reserved to Morrison, of right belonged to the plaintiff, and that the plaintiff, as well as Morrison, was entitled to that notice. That covenant and condition merely provided for the determination of the demise before the expiration of the full term, that is, for an expiration of the term upon a contingency not depending upon the lapse of time, and those entering under the lessee took subject to the failure of title, or the expiration of the term of the lessee in any of the ways provided for. All that the plaintiff could claim was a continuance of his term within the time agreed upon, until the term of his lessor had expired by the limitations of the demise to him. But the inaccuracy of the charge did not affect the result. The defendants claimed the right of possession and to dispossess the plaintiff under a surrender of the term by the original lessee, without the knowledge or assent of the plaintiff. That surrender, and the consequent merger of the greater and lesser interest, terminated the original lease, and the term created thereby, as between the parties to the lease and the surrender. The covenant, in respect to the termination of the lease upon the specified notice and payment, became inoperative with all the other covenants and conditions of the demise. But it "was not competent for the lessor and lessee to affect the rights of third parties by a formal surrender of the lease. The interests and the terms of the subtenant of the lessee continued as if no surrender had been made. The defendants, the surrenderees and owners in fee, became the immediate landlords of the plaintiff, with only such rights as his lessor would have had to the possession of the premises before the expiration of the term. (Davenport’s Case, 8 Coke, 144; Webb v. Russell, 3 T. R., 393; Doe v. Pyke, 5 M. & S., 146.) Morrison could not sell, give up, or surrender to the defendants any thing that did not belong to him; and he could not terminate the lease to the plaintiff, or destroy his rights. (Adams v. Goddard, 48 Maine, 212; Archibald’s Landlord and Tenant, 85.)

As landlords, the defendants had no right of entry, and their forcible dispossession of the plaintiff was a trespass for which the plaintiff had an action; and the proceedings for his removal by summary process, under the landlord and tenant act, having been reversed, the warrant furnished no protection to them, and constituted no defence to the action. (2 R. S., 516, § 49; Hayden v. Florence Sewing Machine Co., 54 N. Y., 221.) The statute expressly gives an action to the tenant in such case.

The plaintiff was only entitled to recover such damages as were the direct consequences of the acts of the defendants, and those acting under their direction and by their authority. This would exclude from the consideration of the jury all damages resulting from the acts of, or want of proper care of the property by the plaintiff. The act complained of was the wrongful removal and destruction of the plaintiff’s property in his absence, and there was no evidence that any part of the loss was caused by his act, or could have been prevented by him. The question of contributory negligence is not in the case. The plaintiff owed no duty to the defendants, and -was not called upon to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where the defendants left them, and look to the latter for their value. The)' were out of his possession by the tortious act of the defendants, by whom, and whose acts, they were lost or destroyed. The plaintiff complains of the pulling down and destruction of his building, and the taking and conversion of his personal property, as well as the damages sustained by a loss of his business. The latter claim was excluded from the consideration of the jury by the court, but evidence of the other items of loss and damage were clearly within the allegations of the complaint, and admissible. For all loss occasioned by the trespass, whether in the destruction of the chattels or the loss of money that was kept upon the premises, the plaintiff was entitled to recover. That the money was kept in an unusual place did not take it out of the protection of the law, or affect the liability of the defendants for their tort. They acted at their peril, and must respond for the consequences. The loss of the money, although the defendants may not have suspected its presence, was the direct and necessary consequence of the acts of the defendants.

There was no error committed upon the trial, in the admission or rejection of evidence, to the prejudice of the defendants. The building had been placed upon the premises by the plaintiff during a former term, under a similar hiring from Morrison, with the privilege of removing the same. The evidence was, that it was so constructed that it might be removed without injury to the premises. There was also evidence for the jury that the privilege of removal was continued to the plaintiff, under the last letting, and that the building was Ms, and removable at Ms pleasure during the continuance of the term, and the question of property, upon the evidence, was submitted to the jury. If, upon the last letting, the property of the plaintiff in the building was recognized, and his right to remove it extended through the renewed term, he was entitled to recover its value in this action. (Loughran v. Ross, 45 N. Y., 792.) He was not only entitled to recover for the building, but also the value of the unexpired term; but, under the charge of the judge, the jury were restricted to the allowance of but one of these items: to the value of the building if the jury found with the plaintiff as to the ownership and right of removal; to the value of the unexpired term if they found for the defendants on the question of ownership of the building. This was error, but against the palintiff. The acts and declarations of the servant of the plaintiff on the premises, at the time of the trespass, was not evidence against the master, and if they were, those offered in evidence were wholly immaterial, and were properly excluded for that reason. The receipts of Morrison for rent were admissible, as the admissions of the landlord, to whose rights, by surrender, the defendants had succeeded, of the payment of rent while he continued to be the landlord. But they were immaterial and did not affect the result, as there was no claim that the plaintiff had made default in the payment of his rent and was liable to be removed for that reason.

Whether the statement of the witness Mitchell, that the plaintiff said he had not, as yet, spent a cent in the action ; that his lawyers took it upon speculation, is in or out of the case is of no consequence. It was a declaration that could not legitimately influence the verdict, and it has no significance, as reported by the witness.

The verdict was for much less than the money claimed to have been lost, exclusive of the other items of damage claimed, and the jury must have rendered a compromise verdict. Injustice may have been done the defendants in the amount of the recovery, although it cannot be demonstrated by the record; but there were no errors of law entitling them to a reversal of the judgment.

The judgment must be affirmed.

All concur; Rapallo, J., expresses no opinion as to the right of the plaintiff to recover for the money lost, but concurs in opinion in all other respects.

Judgment affirmed.  