
    Edward D. Farrell, Respondent, v. The Manhattan Railway Company and The New York Elevated Railroad Company, Appellants.
    
      Eminent domain—damages awa/i'dedfor a period for which the plaintiff’s attorney has-disclaimed a right thereto — when they may be deducted by the' Appellate Division — tenwre of a lessee who remains in possession after the expiration of his term — right while thus in possession to maintain an adtionfor trespass.
    
    Where the attorney for the plaintiff, in an action against an elevated railroad company for damages occasioned by it to abutting property, upon the opening of his case and before any evidence is given, states that no demand will be made for rental damages prior to a date when the plaintiff, who originally took-possession of the property as a tenant, acquired the fee thereof by a deed, an award which includes damages for the period prior to that date, will not he sustained upon appeal.
    In such a case, where the" decision below has been made and the judgment has been entered under section 1022 of the Code of Civil Procedure, authorizing the Appellate Division to review upon appeal all questions of law or fact, and to •grant to either party the judgment which the facts warrant, that court has power to deduct, from the amount awarded as rental damage for the whole' period, the proportionate amount for the period during which the plaintiff’s attorney disclaimed any right to recover such rental damage, where the evidence shows that the injury to the property, in consequence of the trespass, was continuous, and operated during the whole period in the same ratio.
    Semble, that a lessee of premises, who, after the expiration of his term, continues in possession thereof for several months, and until he acquires the fee of the premises hy a conveyance thereof, will, in the absence of any evidence that such possession during the interval between the expiration of the term of the lease and the delivery of the conveyance, was wrongful, or was other than that of a tenant holding over after the expiration of his lease, be presumed to be in pos-•session under a tenure for a year on the terms of the prior lease; and an award '.for rental damages to such premises, made in an action brought hy such person -against an elevated railroad company, may properly cover the entire period, "including such interval, during which he had possession of the premises, either as lessee or as owner of the fee.
    Appeal by -the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    
      J. Osgood Nichols, for the appellants.
    
      Edwin M. Pelt, for the respondent.
   Ingraham, J.:

The plaintiff’s property is No. 73 Bowery, 110 feet north of Canal street, 25 feet in width by 110 feet in depth. There is erected upon, this lot a five-story building, which was built in 1865, long before the construction of the elevated railroad. The judgment awarded to the plaintiff the sum of $4,095, for damages sustained in consequence of the maintenance and operation of the elevated railroad from September 21, 1885, six years before the commencement of the action, to May 9, 1898. The judgment enjoins the defendants from maintaining and operating their railroad in front of the plaintiff’s premises unless the defendants pay to the plaintiff the further sum of $4,550. As to the amount of damage awarded, both for the fee and rental, we think the awards were quite moderate and such as were sustained by the evidence, and there is but one question suggested by the defendants which requires discussion.

It appears from the evidence that in 1865 this property was owned by one Donnelly, and by lease dated September 11, 1865, Donnelly leased the property to one Shears for twenty years and five months from December 1, 1865, the tenant to pay the taxes and assessments and to construct a building; at the end of the term the building to be valued, and paid for by the lessor; that this lease was'assigned to the plaintiff by assignment dated April 19, 1880. The plaintiff testified that he took possession of the .premises under this lease and had been in possession thereof since its date. This lease expired on May. 1,1886. It was also proved that by a conveyance dated February 4, 1881, the plaintiff acquired, the fee of the leasehold property, and that since that time he has been in possession of the property under such conveyance. It would thus appear that from May 1,1886, to February 4,1881, a period of nine months and three days, the plaintiff was in possession of the property without proof of title thereto. The court, in making the award for damages to the plaintiff’s property on account of the easements, awarded to the plaintiff the sum of $4,095 as damages sustained in consequence of the appropriation of the plaintiff’s easements by the defendants from September 21, 1885, to May 9, 1898, the date of the trial, and it would thus appear that there was an award for damages during the time which the plaintiff was in possession of the premises without his having proved a conveyance of or title to the property. There is nothing in the record to show that such possession was wrongful, or that it was otherwise than as a tenant in possession of the premises, holding over after the expiration of his lease. In such a ease the law implies an agreement to hold for a year on the terms of the prior lease. (Schuyler v. Smith, 51 N. Y. 309; Frost v. Akron Iron Co., 1 App. Div. 449.) The plaintiff thus being in possession of the property during the whole period .for which the court had awarded such rental damage, either as lessee or as owner of the fee, and having subsequently acquired the fee before the commencement of the action, it would appear that a trespasser would be liable to a person thus in possession for any damages caused to his interest in the property by reason of such trespass (Witmark v. New York Elevated R. R. Co., 149 N. Y. 393); and as the evidence is sufficient to justify a finding that the plaintiff did sustain damage in consequence of the trespass to the amount awarded by the court for. the period named, the judgment might be sustained were it not for a stipulation or statement made by the plaintiff at the opening, of the case as to the period for which the plaintiff claimed a right to recover for damages sustained by the trespass. Before any evidence was given, counsel for the plaintiff stated: “I do not ask for rental damages prior to 1887, when we bought the fee;” and the defendants insist that this was a stipulation that no demand would be made for rental damage prior to that time, and prevents the plaintiff from recovering for the period from September 21, 1885, down to February 4, 1887, being one year, four months and thirteen days. The plaintiff having thus disclaimed any right to recover prior to February 4, 1887, and the parties having presumably acted upon that disclaimer, we think it was improper for the learned trial judge to award any damage for the period prior to February 4, 1887, when the plaintiff acquired the fee of the property.

The defendants insist that for this error we must award a new trial, as no basis exists upon which we can apportion the damage to the property caused by the trespass. The judgment was entered upon a decision stating concisely the grounds upon which the issues had been decided, and directing judgment to be entered thereon under section 1022 of the Code of Civil Procedure. Under that section of the Code this court on appeal has power to review all questions of fact and laws and may grant to either party the judgment which the facts warrant. The decision states that the ground upon which this award was made to the plaintiff was “ That by the taking of said, easements the plaintiff from the 21st day of September, 1885, has sustained a loss in the rental value of said premises number 73 Bowery, over and above the value of any and all general and special benefit to said premises arising from the construction, maintenance and operation of said elevated railroad in front of them, amounting to the sum of four thousand and ninety five dollars down to the date of trial of this action, to wit, May 9th, 1898.” We think the court has the power, under, the section of the Code before cited, if it appears that this loss in the rental value was continuous and operated over the whole period in the same ratio, to deduct from the amount awarded for rental value for the whole period the proportionate amount for the period during which the plaintiff had disclaimed any right to recover such rental value, and to modify the judgment in that respect, thus directing the judgment to which, under the evidence, the plaintiff would be entitled.

From the evidence it appears that the injury to the plaintiff’s property in consequence of the trespass was continuous, and operated during the whole period. Nothing appeal’s to show that there was any different injury caused by the trespass during the period for which damages were allowed prior to February 4, 1887. In consequence of this disclaimer the plaintiff qas not entitled to recover for the period prior to that time; and by deducting the proportionate amount which was allowed for the period from September 21, 1885, to February 4, 1887, from the amount awarded to the plaintiff as damages caused by the trespass, the plaintiff will be awarded the judgment to which he was entitled, and no grea ter judgment will be awarded against the defendants than the facts warrant.

The cases cited by the defendants in which the court has refused to apportion the award made for rental damage, where it appeared that for a portion of the time for which the award was made the plaintiff was not entitled to recover, were all cases where a judgment was' awarded upon a decision stating the findings of fact and conclusions of law separately, before the amendment of the Code before referred to, and are not applicable to a judgment entered upon a decision provided by that section of the Code.

The judgment appealed from should, therefore, be modified by deducting from the amount awarded for the injury to the rental value of the property caused by the trespass the amount of $443.89, the proportionate amount of the award made for the damage prior to February 4, 1887, and as so modified the judgment should be affirmed, without costs of this appeal.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment modified by deducting from amount awarded for rental damage the sum of $443.89, and as so modified affirmed, without costs.  