
    MICHAEL WOODS, Appellant, v. BRIDGET KERNAN, Respondent.
    
      Damages — recoverable by a t,enamt removed by mrtvs of a judgment in summa/ry proceedings, which, is subsequently reversed on appeal.
    
    One Woods, a defendant in summary proceedings, in which a precept was obtained and served, a judgment entered by default and a warrant of dispossession issued against him as tenant, was dispossessed of certain premises rented by him. Upon, an appeal the final order awarding such premises to the landlord was reversed, and a new trial was granted which resulted in a dismissal of the landlord’s petition.
    In an action brought against the landlord and owner of the premises to recover the damages sustained by such removal, it was held by the trial court that the plaintiff, by reason of his default, was estopped from claiming any damages; occasioned by the removal, and that the recovery must be limited to the actual injuries, resulting from the acts of the defendant, to the personal property of the plaintiff, and that the plaintiff could not recover for the loss of the possession of the property, nor for any fruit growing on the premises, or for any of the garden crops.
    
      
      Meld, that this was error; that the right of the plaintiff to recover was not limited to the injuries done to his goods in their removal, but that he was also entitled to recover for the use of the premises from the time he was dispossessed to the time that restitution was ordered, and as constituting elements of loss to the value of the crops and fruit upon the land which had been gathered during the time intervening between his removal and his restitution.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of Onondaga county on the 25th day of July, 1889, upon the verdict of a jury, rendered at the Onondaga Circuit, May, 1889, in favor of the plaintiff for fifteen dollars, and from an order denying a motion made by the plaintiff upon the minutes of the court, before which the action was tried, for a new trial. The verdict being less than fifty dollars the defendant recovered costs.
    
      W. Gilbert, for the appellant.
    
      Goodelle & Notti/ngham,, for the respondent.
   Merwin, J.:

This action was brought by the plaintiff to recover damages for being unlawfully dispossessed of certain premises in the city of Syracuse, rented by plaintiff from defendant.

On the 2d of August, 1888, this defendant, claiming that the tenancy expired on the 1st of August, 1888, instituted summary proceedings for the removal of the plaintiff. A precept was obtained from a justice of the peace, returnable at 4 p. m. of the same day. This was duly served at 1.30 p. m.

The present plaintiff, being the defendant in that proceeding, did not appear, and judgment by default was rendered against him, and a warrant issued to dispossess him. Under this warrant the defendant therein was dispossessed on the seventh of August.

He appealed to the County Court, his appeal being based, first, upon errors of law; and, secondly, upon affidavits presented for excusing his default and showing a defense, and asking for a new trial before the same or another justice. The matter was duly heard in the County Court, and it was there decided that no error of law existed for the reversal of the judgment, but that the default might be opened upon the payment of ten dollars costs. Accordingly, on the 15th of January, 1889, judgment was entered providing that upon payment of said costs, “ then the final order awarding possession of said premises to the plaintiff be and tbe same is hereby, in all things, reversed and a new trial directed before S. E. Belknap, a justice of tbe peace, in Syracuse, at bis office on the 22d of January, 1889, at two o’clock in tbe afternoon, and restitution of tbe premises described in tbe petition is hereby ordered and awarded to appellant.” Tbe costs were paid and tbe case came to trial as directed, and on tbe twenty-eighth of January judgment was given in favor of tbe defendant therein dismissing tbe petition, with costs, thus determ-. ining that, at tbe time of tbe commencement of tbe proceedings, on tbe 2d of August, 1888, tbe landlord was not entitled to possession. The claim of tbe tenant was, that bis tenancy did not expire until May 1, 1889. The tenant did not re-enter, but commenced this action on March 1, 1889.

In tbe trial under review it was shown, on tbe part of the plaintiff, that bis household goods were considerably damaged at tbe time of their removal • by tbe officer with tbe aid of tbe defendant or her agent. It was also shown that there was then in tbe garden on tbe premises, a crop of potatoes and of corn of some value, and also pear trees, upon which there was fruit in considerable quantity, and evidence was given as to their value. At tbe close of tbe plaintiff’s •case it was held by tbe court that tbe recovery must be limited to tbe actual injury by the acts of tbe defendant to the personal property of tbe plaintiff, and that plaintiff could not recover damages •occasioned by the removal, nor for tbe loss of the possession of the property, nor for any fruit growing on tbe premises, or any of tbe garden crops. Tbe plaintiff duly excepted. It was assumed that before tbe order was made for restitution, tbe crops and tbe fruit bad been used or disposed of by the defendant. Tbe theory ■of the court seems to have been that tbe plaintiff, by reason of bis default, was estopped from claiming any damages occasioned by tbe removal. Assume that this may be so, so far as any inconvenience may have arisen by tbe act of removal, or any expense may have been incurred in tbe removal of bis goods after tbe dispossession, or in obtaining another dwelling, I fail to see bow it should apply to .any loss tbe plaintiff may have sustained in being deprived unlawfully of the use of tbe property, and in being prevented from gathering crops that be was entitled to have. If tbe use of tbe premises, including the crops and fruit that he might have gathered from the time he was put out to the time restitution was ordered, was of material value over and above the rent he would have been obliged to pay, I see no good reason why the defendant should have the benefit of it. No point was made as to the rule of damages in such a case. The ruling denied any right of recovery at all on that basis. It was not claimed that the plaintiff was in default in the payment of rent. But it is suggested that there was no reversal within the meaning of section 2263 of the Code of Civil Procedure, which provides for the recovery of damages by the person dispossessed. There was in form a reversal, the adjudication was wiped out, and it was afterwards, in fact, finally determined that the landlord was wrong. In Hayden v. Florence Sewing Machine Company (51 N. Y., 221) it was held that the ground of reversal in such a proceeding was immaterial. Nor did the failure of the plaintiff to re-enter deprive him of his right to recover for any loss that he had suffered up to the time that restitution was ordered.

I think the court erred in restricting the right of recovery to the injuries to the goods in the removal. The plaintiff was also entitled to recover for his loss in the use of the premises from the time he was dispossessed to the time restitution was ordered, and as elements in the loss, the value of the crops and fruit should have been considered. By reason of the error above stated, there should be a new trial.

Hardin, P. J., and Martin, J.,. concurred.

Judgment and order reversed on the exceptions and new trial ordered, costs to abide the event.  