
    TRENCKMAN v. SCHNEIDER.
    (City Court of New York, General Term.
    March 28, 1899.)
    1. Tenant’s Permission to Use Steam—Presumetion.
    In connection with a tenant’s permission to tap a steam pipe to heat an office, the right cannot be presumed to recklessly waste the heat and power by exhausting the live steam, after use, into a drip sewer. •
    3. Same—Conversion—Instructions.
    In an action for conversion of steam by a tenant who had permission to tap a steam pipe to heat an office, it was error to instruct that they need not consider the value of the steam, or expert testimony relating thereto.
    3. Same.
    In an action for a tenant’s wrongful conversion of steam, in which the covenants of the lease were not in issue, it was improper to instruct the jury to “consider the case from the standpoint of landlord and tenant as to what any two men under similar circumstances would do,” since it introduced a ■ matter of speculation for their consideration, which may have induced them to disregard the evidence.
    
      Appeal from trial term.
    Action by August Trenckman against Minnie L. Schneider. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Argued before FITZSIMONS, C. J., and MCCARTHY and HAS-CALL, JJ.
    E. S. Clinch, for appellant.
    Theo. Sutro, for respondent.
   HASCALL, J.

It is evident, from a reading of the case, that error-was committed in the charge to the jury in statements of fact not borne out by the testimony, and also that the verdict is against the-weight of evidence. Assuming that the plaintiff gave defendant the right to take live steam, clearly it does not appear that he conferred the option to take from and tap the main pipe for the purpose of heating defendant’s office. If such permission were given, it could not be presumed that it was coupled with the right, for-convenience sake, or otherwise, to exhaust the live steam, after use., into a drip sewer, which would be clearly a reckless waste of heat and power, as the testimony shows. It was proper for the jury to-have left to its consideration, by the court, whether defendant were not liable for wasteful use; and the charge that the jury need not consider the value of the steam, nor any of the expert testimony, was error. It having already been established by the appellate court (45 N. Y. Supp. 411) that the covenants of the lease existing between the parties were not in issue, it was not proper to submit to the-jury the proposition, “Consider the case from the standpoint of landlord and tenant as to what any two men under similar circumstances, would do.” This introduced speculation into the consideration of the jury, and it may not be said that did not produce its verdict, as-against the evidence. 20 Misc. Rep. 226, 45 N. Y. Supp. 411; Sayre v. Townsend, 15 Wend. 647. The questions for the jury to determine were whether the tapping of the pipe was with plaintiff’s knowledge and consent, and, if it were not, then how much was plaintiff entitled to recover for steam used. The jury may naturally have been induced, by the statement of the court, to speculate upon all the contingencies of relationship between landlord and tenant “in similar circumstances,” and not been guided at all bv the evidence.

Judgment and order appealed from reversed, and new trial ordered, with costs. All concur.  