
    ROWAN v. KELSEY.
    September, 1866.
    In ejectment, by a lessee against his lessor, to recover possession of rooms demised, which the landlord has altered so as to destroy their identity, if the answer denies the allegations of the complaint, that the acts were done by force and without plaintiff’s consent, and alleges that plaintiff’s tenancy had ceased, evidence that he induced, or assented to, the alterations, is admissible to prove an estoppel. If such an answer be not sufficient to admit this evidence, objection to the form of the pleadings must be taken at the trial.
    
      It seems, that ejectment lies for a room, although the walls have been so altered as to destroy its identity.
    William L. Rowan su^d Charles Kelsey and others, in the supreme court, in ejectment, to recover the possession of certain premises in Brooklyn, and for damages for withholding them. The complaint alleged that on February 20, 1851, the defendant Kelsey leased to the plaintiff for the term0of ten years, at the yearly rent of two hundred and seventy-five dollars, premises described as follows: “All that certain room on the first floor and to the easterly end of the building, situated, &c. [designating locality and dimensions], together wi fch the cellar under the house, of the same dimensions, and also the ground in the rear of the .same, fifty feet on Sedgwick-street, and in length eighty feet.”
    There was in the lease a covenant on the part of Kelsey to put up in the cellar, stalls for forty horses, also bins and harness closets, and a cistern, also to make necessary repairs, and in case the building should be destroyed by the elements, orbe so far damaged as to be untenantable, then to rebuild or repair, the rent to cease until rebuilt or repaired. ■
    It was further alleged that the plaintiff entered under the lease and remained in the possession of the premises until March 1, 1852, when the defendants wrongfully entered; and plaintiff demanded possession and damages.
    The answer substantially denied the complaint, and averred that prior to March 1, 1852, the interest of the plaintiff in the premises ceased.
    On the first trial of the case the plaintiff was nonsuited, but the supreme court afterward held that ejectment would lie, and awarded a new trial. Reported in 18 Barb. 484.
    On the third trial it appeared in evidence that the part of building leased, as alleged in the complaint, was one room in the first story, eighty feet in length, and fifty feet wide, and a cellar or basement containing stalls for horses, and it was leased to be used as a stable.
    On June 22, 1851, the grand jury of Kings county indicted the building as unsafe and a public nuisance. The indictment was tried in October, 1851, and Kelsey, the landlord, was convicted of a nuisance, and by an order of the court, made on Hovember 3, he was ordered to cause the building to be pulled down. Accordingly, in obedience to the order of the court, he went into the possession of the premises, to pull down the building. He took down the front and rear walls, and took up the timber foundations. He also took down the wooden partition at the north end of the part leased to the plaintiff, and took away all the posts that supported the floors. He also cut through the floors of three stories, and then rebuilt the premises in four tenements, each containing a store, dwelling house, and back yard, and each separated from the others by a brick partition wall, carried up from the basement; and by reason of this radical change in the structure, it was claimed that all identity of the building and all fitness for use as a stable was destroyed.
    The judge directed a verdict for the plaintiff, on which judgment was entered.
    
      The supreme court, on appeal, affirmed the judgment, holding, conformably to the previous decision, that ejectment would lie, since, in. their opinion, the premises had not been so altered that they could no longer be identified, and possession thereof could not be delivered by the sheriff. They also held that under the pleadings, the evidence as to the estoppel was not admissible, since the court did not regard an allegation in the answer that the plaintiff’s interest had ceased, and that Kelsey had become entitled to the possestion before March 1, 1852, as being an allegation of a surrender by plaintiff, either in law or in fact, before that time.
    
      Defendants appealed to this court.
    
      John H. Reynolds, for defendants, appellants.—That
    ejectment could not he maintained. Doe v. Burt, 1 T. R. 701; Winter v. Cornish, 5 Ohio, 303; Kerr v. Merchant Exc., 3 Edw. Ch. 315; Graves v. Berdan, 29 Barb. 100. That plaintiff ’s acts had amounted to a surrender of the premises. 2 R. S. 5 ed. 220; 1 Washb. on Real Estate, 357, 359; Lyon v. Reed, 13 M. & W. 285; House v. Barr, 24 Barb. 527; Nickells v. Athurtane, 10 A. & E. N. S. 946; McKenney v. , 7 Watt, 123; Magaw v. Lambert, 3 Barr, 444; Wood v. Walbridge, 19 Barb. 136.
    
      A. J. Spencer, for plaintiff, respondent.
   Hurt, J.

[After stating the above facts.]—That the demise of the rooms and the cellar created no interest in the land upon which they stood, or of which they formed a part, is not open to serious question. It was expressly so held in Kerr v. Merchants’ Exchange Co., 3 Edw. 315, where the demiáe was of the rooms Nos. 10 and 11, in the building known as the Merchants’ Exchange, which was afterward destroyed by fire. It was held that no interest passed in the land upon which the building stood. In Winter v. Cornish, 5 Ohio, 303, the demise was of a cellar and a room over it, in the corner of a building several stories high. After its destruction, by fire, the lessee entered and erected a small structure upon the site of the cellar and room, and of a height corresponding with the room demised. It was held that he took no interest in the land, and had no rights whatever after the destruction of the building by fire. A similar case was that of Doe v. Burt, 1 Term R. 701.

A more difficult question arises upon the point of the remaining identity of the demised premises. Rowan hired a basement filled up with stalls, bins and harness rooms, sufficient to accommodate forty horses, and to be used as a livery stable. He hired also a room of fifty by eighty feet in size, and a piece of land in the rear of it of the same dimensions. The room and lot were to be used as a riding school, and apparently for purposes also connected with the livery stable. It is undeniable that the character of the premises has been so changed that they cannot be used in the manner or for the purposes originally intended. There is now no room of fifty by eighty feet in size, in which horses, harness, grain and carriages may be kept. What was that room is now arranged for the basement and kitchens of several dwelling houses, with the ordinary conveniences, and divided into several parts, separated by substantial brick walls. What was before the large room above it, is now divided into four stores, also separated from each other by the like substantial walls. The lessee certainly would not be obliged to accept such premises as the identical premises leased from Kelsey. He could well say that for the purposes originally intended, as well as in form, character and value, the identity of the premises was entirely destroyed. It is true that the several parts of the building had not been entirely taken out of existence, inasmuch as two of the walls, a portion of the roof, and a portion of the foundation were used in the new structure. It is equally true, however, that its character and form had been destroyed, that the front and the rear walls were new, that what was before one large stable and riding school, was now four separate and independent stores and dwelling houses, for practical purposes as much disconnected as if they were on different streets. The old materials remained in part, but in a new form and character.-

How could the sheriff put the lessee in possession of the demised premises, in exeeution of the judgment of the court ? He could find no such rooms as would be described in the judgment; he could find no livery stable or riding school. He could do it in no other way than by marking off upon the ground the original dimensions, and carrying the lines lipward to the second story. This, however, bases the recovery of possession, upon an interest in the land, which I think the lessee does not possess, and entirely ignores the rooms themselves.

Does it alter the legal result, that the identity of the premises is destroyed intentionally, by the hand of man, and not by fire, by tempest or by earthquake ? The question is one of identity, and not how the non-identity was produced. The lessor might well be liable in damages in the one case and not in the other, but the loss of identity would be equal in either case.

It may be assumed, however, in this case, that the change in the building was made by the lessor, in execution of the judgment of the city court of Brooklyn, for the purpose of destruction as a nuisance, and not for the purpose of repair. It may be assumed, further, that the destruction was with the assent of the lessee, Rowan. Assuming these facts, I am of the opinion that there was not only a destruction of the identity of the premises, but it was such an one as ended the rights of the lessee in the premises, and prevented his right of recovery in the present action.

The judgment of the city court, that this building as occupied by Rowan, was a nuisance from its unsafe and dangerous character, was put in evidence without objection, as well as the- order of the court directing its removal. It was proved that the rebuilding was made expressly in pursuance of the requirements of the judgment. It was also offered to be proved that Rowan told the workmen engaged upon the building that, he had caused it to be torn down, that he considered his lease as at an end, and that the lessor was under no obligation to-rebuild, and desired the 'conversation to be reported to the lessor; that it was so reported and acted upon by him, and the building was then divided into stores and dwellings, which had not been before intended. This evidence was rejected, and the plaintiff excepted. If the presence of this evidence- would have aided the defendant’s case, he is entitled to a new trial on account of its exclusion, and my assumption of the facts above stated is, therefore, justified, in forming a conclusion upon the case.

I am of the opinion, also, that there was an equitable estoppel upon the lessee, upon the facts proved and offered to be proved, which would prevent his recovery- It was proved or offered to be proved that the lessee was the chief instrument in instituting the proceedings and conducting the trial, which resulted in the judicial condemnation of the building; that he did this from feelings of hostility to the lessor; proof was. offered that while the workmen were- engaged upon the work, he reported to him that he had caused, its destruction; that he: considered his lease as at an end; that the lessor was under no obligation to rebuild, and desired, this statement to. be reported to the lessee; that the lessor, therefore, altered his plan, and made the building into houses and stores. It was also proved that the lessee was several times about the building while the work was going on, understood its nature and character, and made no objections to the alterations. This evidence was offered with the avowed purpose of proving the acquiescence of the lessee in the conduct and acts of the lessor, and in my opinion was competent for the purposes intended.

It is not a sufficient answer to its excldsion, that the defense proposed to be established was not pleaded. I think it was fairly within the allegation of the answer denying that portion of the complaint which alleged that the defendant entered upon the premises without the consent of the plaintiff, and held the same by force, and with a strong hand, and within the further allegations of the answer that the plaintiff’s interest in the premises had ceased and determined, and that the defendant was entitled to the possession of the same; this evidence tended to prove the assertion.

But no such objection was taken on the trial, nor was the exclusion there placed upon the form of the pleadings. If that ground had been stated, an amendment to the pleadings would have obviated the alleged objection, and we are not now at liberty to deprive the party of the benefit to which he was then entitled. The evidence would have justified the jury in finding that the plaintiff had abandoned the premises; that he had given express authority to the lessor to rebuild the premises after his own judgment: that he looked on at the expenditure of large sums of money destroying his former right and possession, without dissent. A surrender of his rights or an estoppel against insisting upon them, would not be deemed unreasonable upon such a state of facts. Dezell v. Odell, 3 Hill, 215; Plumb v. Cattaraugus Mut. Ins. Co., 18 N. Y. 392; 6 Ad. & E. 475; Lawrence v. Brown, 5 N. Y. 394; Miller v. Watson, 4 Wend. 267; Tilton v. Nelson, 27 Barb. 595.

Whether the plaintiff could have recovered the rear lot unoccupied by the dwelling, or whether that is to be considered as an incident or adjunct to the building, it is not necessary to decide. The court ordered a recovery of the whole premises, in which they were in error, in my view of the case, as to the rooms and the cellar. A new trial must therefore be ordered.

The judgment should be set aside and a new trial ordered.

All the judges concurred, on the ground of the improper exclusion of the evidence as to the estoppel.

Davies, Oh. J., and Morgan, J., concurred in Hunt’s opinion on both points.

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