
    Euphemia C. Purton, Resp’t, v. Henri O. Watson, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 23, 1888.)
    
    1. Action of waste—Nature of.
    An action for waste is a proceeding ex delicto, and lies for whatsoever does a lasting injury' to the freehold or inheritance, either extrinsically injurious thereto in contemplation of law, or shown to' be so by proof. In the latter case it is a question for the jury.
    
      2. ¡-Same—Who can maintain an action,
    Oné seized of an estate in remainder or reversion can maintain an action of waste, notwithstanding any intervening estate for life or years. Such interest need not continue to exist in plaintiff at the time of the commencement of the action. A reversioner or remainder man, whether such in fee or for life or years, may, if his residuary interest was wasted, bring either the “real action” of waste, or a suit for trespass for single damages alone.
    8. Same—Against whom maintainable.
    An action of waste may be prosecuted against any tenant for life or years, and the assignees of either, and also against co-tenants and guardians
    4. Same—Test of action.
    The test of waste is disherison of him in remainder or reversion, regardless of the amount of actual injury done to the property. The inquiry in an action for waste is confined solely to the damage done to the inheritance, entirely irrespective of whether the property, by the alleged waste, became more valuable or less. But the plaintiff must be one seized of some estate of reversion or remainder.
    5. Same—When treble damages allowed.
    To entitle plaintiff to a trebling of the damages found, the complaint must be wholly based on the statute.
    6. Same—Action under Code.
    Although under the Code the former technical action of waste is abolished, the general provisions of the Revised Statutes regarding such former suits of waste, remain in force and apply to an action in the nature of waste brought under the Code of Civil Procedure.
    
      7. Same-^-Different kínds of waste.
    There are two kinds of actionable waste, to wit: Negligent waste, or vanton and malicious waste. ■ An action for either kind is maintainable immediately after its commission. Good faith, on the tenant’s part, is no defense where the act, on general principles of law, amounts to waste.
    8. Same—Tenant has no right to commit waste—Exception.
    A tenant has no right to exercise any act of ownership. He has merely the right of “user,” except as modified by special written agreement between him and the reversioner.
    9. Same—Code Civ. Pro., title one of chap 14, not applicable to city court.
    Title 1, chap. 14, Co°de Civ. Pro., is not applicable to the city court of New York. The suit of “ waste,” under secs. 1651, 1659, continues (like the old writ of waste), a real action not intended for prosecution in this court. This want of jurisdiction of a case of waste exists whether the matter is malicious or mere negligent waste.
    10. Same—Landlord and tenant—What amounts to a waiver by landlord.
    The landlord’s knowledge of alterations and continued collections of rent for the altered premises, is a waiver and acceptance by the landlord of the changes, and may he shown as a parol waiver of the required prior written permission required by law before such alterations could be lawfully made.
    11. Same—When remedies waived.
    The landlord’s remedies ex delicto, are waived by the conthmed tailing of rent if he is cognizant of the state of affairs. The acceptance of the rent with knowledge works a reaffirmance or a reissuance of the lease, and the condition once thus waived is dispensed with forever.
    12. Lease under seal—Effect of.
    The lease in question was under seal. Any evidence to disprove the relation of landlord and tenant between plaintiff and defendant would be incompetent on the defendant’s part. It was unnecessary to prove title in the lessor, who was the plaintiff, although the complaint contained no averment of title in plaintiff to the demised premises.
    13. Practice—When question of jurisdiction can be raised.
    On the trial of the action the objection that a suit under the Code for waste could not be maintained in the city court, was not raised. Held, that it could not be raised upon the appeal; that the appellant was concluded on that point.
    14. Trial term—Order when not appealable—Code CrviL Procedure, §§ 1301. 1316.
    An order of the trial term, increasing the verdict, is not appealable, except upon the appeal from the judgment. It is not in itself appealable, but can only be reviewed by being specified in the notice of appeal from judgment
    Appeal from a judgment entered on the verdict, as increased, and from an order of the trial term increasing the verdict.
    This action is prosecuted to recover damages for the defendant-appellant’s acts, destructively injurious to the premises, by him held as a tenant of the respondent under a sealed lease for years. The answer admitted the making of ‘'alterations,” by defendant, in said premises, but was otherwise a general denial. Upon this issue, on substantially uncontradicted evidence, the jury found in plaintiff’s favor, the plaintiff’s testimony proving the wrongs, complained of, in detail. The position of the appellant, and the evidence offered on his part, were an attempt to justify his acts and their consequences, by parol consents and waiver of estoppel on respondent’s side, as also to show benefits conferred on the property by the “alterations” actually made. This testimony was mostly excluded.
    The premises had belonged to plaintiff’s father, and she was his “executrix” when the lease was executed. 'The complaint did not aver or .show whether plaintiff was at all seized of the premises or possessed thereof, nor whether she was entitled to any interest in the inheritance.
    The building was let to defendant “to' be used for the sale of bric-a-brac, furniture and art decorations,” and the defendant claimed that the “alterations” proved were by him made for properly fitting the premises for his use as a place of sale of bric-a-brac, furniture and- art decorations. No/pre-existing written license for such alterations was adduced herein; and the court ruled throughout the trial that the defendant could not justify his waste without written, license,. and that the suit was an action for “waste.” After the verdict the trial judge trebled it on plaintiff’s application, at an adjourned trial term, and the defendant’s motion to set aside the verdict and grant a new trial was denied.
    
      George M. Forster, for app’lt; J. D. & N. E. Keman, for resp’t.
   Pitshke, J.

An action for “waste” is a proceeding ex delicto, and lies for whatsoever does a lasting damage to the. “freehold or inheritance,” either intrinsically injurious thereto in contemplation of law, or shown so to be by •proofs for the jury (McGregor v. Brown, 10 N. Y., 117, 118), a special and sufficient license in writing, to commit the waste- done, being requisite to “avoid” such action of waste and its consequences (McGregor v. Brown, 10 N. Y., 119; Code Civ. Pro., § 1651). And it is not competent for the defendant to prove, by either a parol agreement or the evidence of witnesses, that the waste resulted in a benefit to the premises. McGregor v. Brown, supra, 117.

At common law, no person could maintain the action who had not an estate of “inheritance” in him at the time when the waste was committed, for the “damages ” were recoverable for the injury done to the inheritance, but, .then, there could be no “intervening estate” outstanding .if the suit was to be brought. Robinson v. Wheeler, 25 N. Y., 255, 256, 258. But our statute law goes further, and authorizes the maintenance of an action of “waste” by .one seized of any estate in remainder or reversion, not- ' withstanding any intervening estate for life or years ; and it may be prosecuted against any tenant for life or years, .and the assigns of either, and also against co-tenants and guardians. And such “interest” need not continue to exist in plaintiff at the commencement of the action. Id., 257, 259. The law now, therefore, is that a reversioner or remainderman, whether such in fee or for life or years, .may, if his residuary interest was “wasted,” bring either the real action ” pf waste, or a suit for trespass for single damages alone.. Id., 259.

It. is self-evident that in either controversy the plaintiff to recover must appear to be a party legally interested in tthe. property damaged. See Carris v. Ingalls, 12 Wend., 73. The test of “ waste ” is disherison of him in remainder or reversion, as aforesaid, regardless c>f the amount of aptual injury to the property done. Livingston v. Reynolds, 26 Wend., 122. The plaintiff must be one seized of some estate of reversion or remainder. Woodruff v. Cook, 47 Barb., 305, 309.

The inquiry, in an action for “waste” is confined solely to the damage done to the inheritance, entirely irrespective of whether the property by the alleged waste became more valuable, or less. Van Deusen v. Young, 29 N. Y., 9, 24, 26, 35 ; Livingston v. Mott, 2 Wend., 605.

To entitle the plaintiff to a trebling of the damages found, the complaint must wholly be based upon the statutes. Benton v. Dale, 1 Cowen, 160.

Although, under the Code, the former technical action of “waste” is abolished (Harder v. Harder, 26 Barb., 409), the general provisions of the Revised Statutes, regarding such former suit of waste, remain in force, and apply to an action in the nature of “ waste ” brought under the Procedure Code. St. John v. Pierce, 22 Barb., 362, 367; Lang v. Wilbraham, 2 Duer, 171.

If the present plaintiff were, in fact, interested in the “house and lot” let to defendant, the latter, as tenant, would be necessarily liable to a suit for “waste ” in making extensive alterations, as herein shown, detrimental to the inheritance, though done under a power to make alterations not to be injurious to the premises. Agate v. Lowenbein, 57 N. Y., 604, 607, 608 609, 610, collating the authorities on subject of waste.

Whether the defendant’s acts caused injurious waste in their effect thereof upon the property, or were reasonably required for the enjoyment of the premises, as the same were let, is not a question of law for the court, but entirely a matter of fact to be left to the jury.

There are two kinds of actionable waste, namely, either ** negligent waste,” or “wanton'and malicious waste.” The action for either kind is maintainable at once after its commission, and the theory of the action is to compel the wrongdoer to make “satisfaction,” equivalent to a restoration of the premises to their previous condition. Agate v. Lowenbein, supra, pp. 612, 613. The inquiry is as to the injury” to the “ reversion; ” and good faith on the tenant’s-part, is no defense where the act on general principles of law, amounted (as herein), to “waste.” Id., p. 614; Robinson v. Kime, 70 N. Y., 147, 151. A tenant has no right to exercise any act of ownership; he has merely the right of-“user,” except as modified by special written agreement between him and the “reversioner.” Bacon’s Abr., 434; Agate v. Lowenbien, supra, p. 614, 615; London v. Greyme, Cro. Jac. 181 Dyer, 65; Cole v. Greene, 1 Lev., 309.

The court below substantially held herein, that this cause.was, upon the pleadings, for destroying inner partitions and ‘ other affirmative acts of “waste” beyond the license given in the lease_ in evidence, and not for a breach of the covenants of said lease to surrender the premises in the condition prescribed. The suit was all through tried as the technical one of “waste,” and not as merely an action of “trespass,” of which latter (as a cause requiring only a judgment for money), this court would have full jurisdiction, although incidentally the case involves a trial of the title to real estate. McCrea v. Jacobs, 19 Abb. New Cas., 188, 189.

Damages in “trespass” are, however, not recoverable by the present plaintiff, if only a naked lessor for another under the “ sealed lease ” herein, on which she alone could maintain any action (Shaefer v. Henkel, 75 N. Y., 378), without some proof of title in her at the alleged wrongdoing by defendant, she being then out of actual possession. Gardner v. Heart, 1 N. Y., 528, 529; Stockwell v. Phelps, 34 id., 366; Edwards v. Noyes, 65 id., 125, 126; Tobias v. Cohn, 36 id., 364. And in “trespass,” the complaint must (besides stating her title or alleging plaintiff’s actual possession), also aver how the “plaintiff’s interest” in the property was damaged, restricting the claim as lessor to that maintainable as “reversioner.” Rowland v. Fuller, How. App. Cases, 636, 637. Unless directly or presumptively interested in or actually possessed of the premises in question, this plaintiff could not insist she sustained a damage recoverable by an action of “trespass,” any more than by a suit of “waste;” an averment of injury to the property generally, is not enough. Id. Upon this point there was a failure of direct proof on the trial.

The old writ of “ waste” was a real action; and in the action under our Code, brought (as herein), by any other individual than a “ joint tenant or tenant in common,” the “ judgment,” if the injury to the estate in reversion was intentional or such injury equals the value of the tenant’s unexpired term, must be that the plaintiff recover the “place wasted,” by way of forfeiture, besides treble the damages found by the jury (Robinson v. Kinne, 1 Pars. Sup. Ct. R., 60; 3 R. S. [335], 346, § 10; Code Civ. Pro., § 1656), and where the suit for “ waste ” is instituted by a joint tenant or tenant in common, the court properly having the case, may award immediate partition of the property. 2 R. S., id., § 11; Code Civ. Pro., § 1656.

But this court could neither decree “forfeiture” nor “partition,” and hence title 1 of chapter 14 of Code Civil Procedure must be deemed to be inapplicable to the city court of New York; and the suit of “waste” under sections 1651-1659 continues (like the old “writ of waste”) a “real action,” not intended for prosecution in this court. Where the proceeding is brought by a “lessor,” a “valuation” of the tenant’s estate is usually necessary to determine whether a judgment of forfeiture is appropriate under section 1655. See Kidd v. Dennison (6 Barb. 9, 18); Harder v. Harder ) 26 id., 409); Carris v. Ingalls (12 Wend., 70, 73).

A lessor’s suit for “waste” ordinarily involving a “ valuation ” and special judgment ás aforesaid is, therefore, at its commencement, not an action wherein the complaint asks judgment for a “sum of money” only, or one to recover a “ chattel or chattels,” or to foreclose a “ lien,” nor is it to take a “confession of judgment,” which several cases embrace the whole jurisdiction of this court as regards “ subject-matter.”

This want of jurisdiction of a case of ■ “ waste ” under the Code is alike, whether the matter is malicious or mere negligent waste; “forfeiture” or “ partition ” is incidental to either kind of waste.

The “ action for waste ” in the Civil Procedure Code is separately classed among actions relating to real property in title 1 of chapter 14. Under this title, a notice of lis pendens can be filed in “ waste” against the plaintiff’s lessee (§ 1670) so as to bind the latter’s transferees, and the judgment in “waste,” if an award of a “forfeiture” or a “ partition ” has been obtained in the case, must specially direct the delivery of possession of the property to the person entitled thereto (section 1675, and see section 1661). In considering the nature of this Code action for waste between lessor and lessee,” as a real action “ in rem.,” the fact that the lessee’s term expired before the action is of no weight. It required in section 263, subdivision 1, Code Civil Procedure, the express words “for waste” to confer on the superior city courts jurisdiction in a case in the nature of waste; and hence, in the absence of any such express language in said Code with respect to this court, its jurisdiction in the “action for waste ” under said Code cannot be made out by mere implication. Prior to such Code, this court had no jurisdiction of a cause in substance the former action of “waste.” So held in Snyder v. Beyer (3 E. D. Smith, 235). And legislation was requisite since said decision, to confer such jurisdiction on the city court, but none has been statutorily given since then. This court is by the Code a “ court of record,” but it is such only for the purpose of fully exercising its powers, solely statutory. Huff v. Knapp, 5 N. Y., 69.

It being a court of special and limited jurisdiction, its authority over the “ subject-matter ” is not assumed until, clearly made out and apparent. Ford v. Babcock, 1 Denio, 158, 159; People v. Bradner, 107 N. Y., 5; 13 N. Y. State Rep., 902; Chemung C. Bank v. Judson, 8 N. Y., 260; Frees v. Ford, 6 id., 178; approved in 107 N. Y., 8.

But till the contrary is shown, all courts are “presumed” to have acted within its particular jurisdiction and prima .facie according to law (Hart v. Seixas, 21 Wend., 48) ; so that where the statute requires express notice to parties-defendant, yet (except the contrary is proved) it will be assumed that all persons concerned had due notice. Brown v. Wood, 17 Mass. R., 72. This rule applies also to inferior tribunals and magistrates, that due service of the proper process will be presumed. Hart v. Seixas, 21 Wend., 51. The court below could not treat this cause as one for “waste,” if objected to on that ground; that such would affect “realty interest” of plaintiff, injured by or through defendant. And if the action as triable was not one of “waste,” the justice below properly ruled that a previous written license, as prescribed in said section 1651, would alone excuse the defendant’s alterations, had the question been duly raised on the trial.

Considering this action simply as a suit for “trespass” on the case contrary to the letting, the landlord’s knowledge of the alterations and continued collection of rent for the .altered premises, might be regarded as a waiver against such landlord and acceptance by her of the changes (Smith v. Rector, 107 N. Y., 611, 619, 620; 12 N. Y. State Rep., 783); and the “conduct” of the parties (is such as letters approving of the alterations, in connection with the fact of subsequent rent being paid) might therefore be shown, as a parol waiver of a prior written permission prescribed before alterations could be lawfully done. Long v. Stafford, 103 N. Y., 283; 3 N. Y. State Rep., 87. Evidence on these matters should have been admitted, if properly brought to the attention of the .judge.

The landlord’s remedies ex delicto were waived by the continued taking of the rent, if cognizant of the state of affairs; and they are entirely gone then, the acceptance of “rent,” with knowledge,” working a re-affirmance or re-issuance of the lease. Camp v. Pulver, 5 Barb., 91, 97; Conger v. Duryee, 90 N. Y., 598, 599, 600, 601. For a condition once thus (directly or impliedly) waived is dispensed with forever. Murray v. Harway, 56 N. Y., 337. Proof accordingly, if properly adduced and allowed below, would, so far, have been a good defense herein.

The plaintiff’s lease to defendant being under seal, only Mrs. Purton could sue on it, and any evidence to disprove the “relation of landlord and tenant” between plaintiff and defendant, and its inferring in Mrs. Purton,. title would be incompetent on the defendant’s part. Schaefer v. Henkel, 75 N. Y., 378. But for this direct estoppel by deed, so created solemnly between the parties to this suit by virtue of their said sealed document, barring all “denial” by defendant of the plaintiff’s title in and to said premises as defendant’s landlord, the foregoing reasons, hereinabove. expressed, would seem to require a reversal of tne judgment and orders appealed from herein. Elsworlh v. Putnam, 16 Barb., 56S; Hutchins v. Smith, 63 id., 251.

It must be here added, that if there was any error committed herein on the trial, in the manner of proving the damages, the appellant has waived the right to raise the question by his omission to object when the evidence was introduced. For if then apprised of any objectionable feature thereof by an objection from appellant, the respondent could have supplied of obviated the defect. This is a familiar rule. It was eminently proper for the court to fully instruct the jury as to what alterations of the demised premises constituted, legally speaking, acts of “waste,” treating the suit as based on violated “covenants against waste.”

As the lease in evidence createa oetween plaintiff and defendant the undeniable relation of landlord and tenant with a landlord’s title thereby implied in the plaintiff-lessor, no proof of title in her was requisite to be made herein under these circumstances, and the complaint should be deemed “conformed” to the “evidence on this subject, also including the legal inference on the contention that the complaint has no averment of ‘title’ in plaintiff to the demised premises,” as the existence of such title cannot be negatived by this defendant-lessee, no matter what the truth is. And accordingly, title in the plaintiff was mutually assumed at the trial herein, and no question whatever was there raised as regards any failure to either allege or prove title in plaintiff, and the latter fact must be taken as mutually “conceded.” In that respect, i. e., that the complaint should be considered conformed to the adduced evidence showing implied title in plaintiff as lessor (Pope v. Terra Haute, C. and H. Co,, 107 N. Y., 66; 11 N. Y. State Rep., 209) is not an authority applicable to this case. The motion for a nonsuit was, besides, not sufficiently specific to raise this point.

As regards the appellant’s position now, on the appeal, that the court below could not try this cause as a suit under the Code for waste, it suffices to say that the point was not, in any way, raised on the trial, and the appellant is now therefore concluded on that point. Had he called attention to such a question, the point could have been duly ruled on and remedied by continuing the cause as one merely for unlawful “trespass,” and the trial then in that way would have decided the whole controversy between the" plaintiff and defendant and disposed of it, treating the complaint as “conformed” to the admission of lessor’s title to the premises by the lease itself as executed. The appellant has properly had “his day in court.”

No evidence, appropriately adduced, was rejected; and the exceptions to testimony admitted are without force.

It follows that the judgment and the order denying new trial should be affirmed, with costs.

The order increasing the verdict was not appealable except upon the appeal from said judgment. It is not in itself appealable, being a trial term order, but can only be reviewed by being specified in the notice of appeal from the judgment. Code Civ. Pro;, §§ 1301-1316; Cameron v. E. L. As. Co., 13 J. & Sp., 628; Uline v. N. Y. C., 79 N. Y., 175.

The notice of appeal from the judgment herein does not specify or refer to said order increasing the verdict. It is, hence, not before us for consideration.

The appeal taken from the said order increasing the verdict herein, under Oode (§§ 1184, 1651, 1655), must therefore be dismissed, with costs of that appeal.

Nehrbas, J., concurs.  