
    Adam H. Eysaman, as Guardian, App’lt, v. Mary Small, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    1. Waste—Question op pact.-
    The question as to whether a life tenant has been guilty of waste is one of fact, and a finding thereon by the trial judge who saw and heard the witnesses will not be disturbed, where the evidence was conflicting
    2. Appeal—Evidence.
    Where it is not apparent that the questions ruled out by the court would if answered have influenced the result, and the substance of the matter inquired into appears in the appeal book, the judgment will not be reversed on the ground of such rulings alone.
    3. Waste—Tbial by jury—Waives.
    Where a jury was impanneled in an action for waste, and the plaintiff did not object to its subsequent discharge by the court, it will be assumed that such acquiescence was equivalent to a waiver by the plaintiff of his right to trial by jury.
    Appeal from a judgment entered in Herkimer county on the 31st day of May, 1890, in favor of the defendant, dismissing the plaintiff’s complaint upon the merits, upon a decision made by the circuit court finding, as a matter of law, that the plaintiff has failed by her evidence to establish any cause of action against the defendant, and ordering the complaint dismissed on the merits. On the 25th day of June, 1887, John Small died at his residence in German Elatts seized in fee of the premises described in the complaint, leaving the defendant, his widow, him surviving, and an adopted daughter, the wife of Adam H. Eysaman, the said Adam and the said wife being the parents of the said Lulu Eysaman. The will of John Small was admitted to probate on the 27th of September, 1887, in Herkimer county, and in the will the premises were devised to the defendant for life, with a remainder in fee to Lulu Eysaman. The premises consist of about three acres of land, dwelling-house, smoke house and carriage house thereon, which were occupied by the deceased as his residence and for many years before his death, and his wife, the defendant, and his adopted daughter. The defendant remained in possession of the premises under her husband's will, and has occupied them since his death. Lulu and her parents occupied the same premises with the defendant r om the time of the death down to the 4th of June, 1889 The deceased was about eighty-four years of age at the time of his death, and the defendant about seventy, and Lulu about four years old, and her father was appointed her guardian on the 7th of October, 1889. No income has been received by the defendant from the property, and the only advantage she has derived therefrom has been the occupation of the same for a residence and the use of the land for grass and hay and vegetables for her own use. At the time of the decease of her husband the premises were old and in some respects out of repair; there were some slate on the roof broken and some gone; some shingles gone; the sills of the veranda somewhat decayed and other sills more or less rotten, “ but their condition was not such as to interfere with the comfortable use of the same for the purposes for which they were used by the deceased or to require immediate repair to preserve the buildings.”
    The court found: “ The condition of the buildings in the respects referred to in the last finding continued from the death of John Small to the time of the commencement of this action in November, 1889, and thence to the present time, and the buildings are now in a state of repair and condition for u§e and preservation substantially the same as they were when Small died and when the estate of the defendant and of Lulu Eysaman, the ward of the plaintiff, vested and took effect under the will. Before the commencement of this action, and after his appointment as guardian as aforesaid, the plaintiff demanded of the defendant that she repair the buildings on the premises above referred to. No such repairs were made or commenced before the commencement of this action nor have since been begun or made.” The plaintiff requested the court to find, viz.: “ Since the said defendant has had the occupation, use, benefit and control of said premises and buildings she has suffered the buildings on said premises to become or to remain ruinous, dilapidated and out of repair in the respects and to the extent charged in the complaint.” The court did not so find and the plaintiff took an exception thereto. The plaintiff also requested the court to find “ That said buildings in order to their proper and reasonable reparation and to prevent further and increasing decay and injury thereto require the expenditure of the sum of $192.” The request was not found and the plaintiff took an exception. The plaintiff also requested the court to find “ The proper and reasonable reparation of the dwelling house and of a stone building appurtenant thereto, used as an ash house, requires the expenditure of at least $42.50 or more, to put them in proper condition and to prevent and arrest further decay and injury to said buildings.” The court did not so find and the plaintiff took an exception. The court was also requested to find: “ The said defendant, before the commencement of this action, refused to make any repairs to said buildings or any of them.” The court did not so find and the plaintiff took an exception. The court found, as a matter of law, viz.: “The said defendant as life tenant of said premises is bound to make reasonable repairs to said buildings to prevent further waste thereof and injury thereto.” A request was made by the plaintiff, viz.: “ The plaintiff is entitled to judgment that defendant within a reasonable time make repairs to said buildings so as to put them in reasonable and proper condition to arrest injury and decay thereof,” which request was not found and the plaintiff took an exception thereto.
    
      George W. Smith, for app’lt; Devendorf & Smith, for resp’t.
   Hardin, P. J.

Appellant does not claim what is known in law as “voluntary waste,”but on the contrary does claim what is commonly denominated “permissive waste.” Mr. Washburn in his work on Real Estate, vol. 1, p. 126, says: “ To suffer it (house) to go to decay for want of necessary repair, is permissive;” and he adds: “But whatever the'act or omission is, in order to its constituting waste, it must either diminish the value of the estate, or increase the burdens upon it, or impair the evidence of title of him who has the inheritance.” Waste, in short, may be defined to be whatever does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance; and he further adds: fl It often becomes a question for a jury to determine whether a certain act be or be not waste, without referring to a criterion drawn from any other country. The rule as to what constitutes waste is uniform. Its application depends upon the condition and usage's of the place where it is to be made.” And the same author at page 134, second edition, says: “Though a tenant is clearly liable if he permits a house or fences on the premises to go to decay, when by the exercise of reasonable diligence he might prevent it, it is not easy to lay down rules a priori to define when and how far a tenant shall act in all cases. Decay is often so gradual that it is difficult to determine when a tenant is bound to repair, or how far he shall go in making repairs in any given case.”

In Jackson v. Tibbits, 3 Wend., 341, Marcy, J., said: “The very term waste implies the idea of detriment to the landlord or reversioner, * * * without damage it would seem there could be no waste; indeed, Blackstone defines waste to be whatever does a lasting damage to the freehold or inheritance. 2 Blackstone Com., 281.”

In Jackson v. Brownson, 7 John., 232, Van Ness, J., says: “ It is a general principle that the law considers everything to be waste which does a permanent injury to the inheritance; ” and in that case it was held that what acts would constitute waste is usually a question of fact fora jury to decide. In the appeal book before us we find a great conflict in the evidence upon the important questions of fact involved in the findings and refusals to find. In the points of the learned counsel for the appellant we find clear, caustic and resolute criticisms of the testimony given in behalf of the defendant, and clear and persuasive comments upon the testimony given in behalf of the plaintiff, and perhaps if the question was res nova we might reach the conclusion evolved and earnestly asserted by the learned counsel for the appellant

However, after a perusal of the evidence, and giving to the findings made by the trial judge such influence as we think they should receive from our hands, inasmuch as he saw and heard the witnesses and could thus well judge of the weight and credence to be given to the testimony,unusually conflicting, we are constrained to regard it as our duty to adopt the findings made by the trial judge upon the vital questions of fact; nor are we prepared to say that he improperly refused to find in pursuance to the requests made by the plaintiff. The requests thus refused embraced as matters of fact subjects upon which the testimony was conflicting.

(2.) We have looked at the rulings made upon the trial and we find no such error as we think calls for a reversal of the judgment. ' Plaintiff put a question to one of the witnesses calling for ■ the valuation of the dwelling house; thereafter the counsel for the plaintiff stated that the “idea of the testimony was to get the relative amount of repairs taken in connection with the entire value of the property; ” thereupon the court remarked: “ That has nothing to do with the question at all; ” thereupon an exception was taken, and subsequently the question was propounded to the witness, viz.: “ What, in your opinion, would that building be worth now, if it were put in proper repair ? ” This question was objected to as incompetent and not the proper measure of damages, and the objections were sustained and the plaintiff’s counsel took an exception. In considering these rulings it must be borne in mind that the case presents a very full and accurate description of the property; of its condition as found by several witnesses on the part of the plaintiff, as well as its condition as found by several witnesses on the part of the defendant, and photographs of the buildings were also produced in evidence; and it is not apparent that the questions which were ruled upon by the court would have, if answered, influenced the result. In substance, the evidence sought for appears in the appeal book. (See § 1003 of the Code of Civil Procedure.) Nor do we think that the circumstance that the witnesses were permitted to say that a barn was built on the farm ten or fifteen years before, was prejudicial to the plaintiff or influenced the findings made by the trial judge. Nor do we think it was error to receive evidence that the premises yielded no money income to the defendant and that the advantages which she derived from the occupation were such as ensued from the use of the house and receiving the produce of the land under the circumstances disclosed by the evidence. The vital question upon the whole evidence seems to have been whether the property was suffering lasting injury or permanent injury by the omission of the defendant to make expenditures thereon; upon'all the evidence the trial judge seems to have reached the conclusion that the case was not brought within the principles of 1 law to which we have already adverted.

(3.) It is suggested in behalf of the appellant that “ the trial judge misapprehended the scope of the complaint in holding that only equitable relief was sought. The court, after a jury was empanneled and the case was partly tried, discharged the jury.” At the commencement of the case and exceptions we find it stated', viz.: “Case opened to the jury in behalf of the plaintiff;” also, that '‘One of the jurors called upon the panel,” etc. At folio 800 it appears inferentially that the jury had been discharged. The defendants counsel seems to have, at that stage of the case, stated an objection and exception, and he further observed: “I would like to have it appear that it was duly objected to and a request made to go to the jury generally and an exception generally; ” and after some further remarks by the defendant’s counsel it appears the court observed: “ The case never should have been placed upon the jury calendar; ” and thereupon the defendant -took an exception, but as the defendant has not appealed, his exception is unavailing. We have looked in vain through the appeal book to find any exception taken by the plaintiff to the action of the court in discharging the jury and continuing the trial without a jury. We therefore are unable to discover any exception upon which the plaintiff can successfully allege error in the court in discharging the jury and continuing the trial without a jury under the supposition that the case was one in equity.

It is provided in § 1651 of the Code of Civil Procedure that “An action for waste lies against a tenant by the curtesy, in dower, for life, or for years, or the assignee of such, a tenant, who, during his estate or term, commits waste upon the real property held by him.” And in § 968 of the Code, it is provided that in an action for waste “ an issue of fact must be tried by a jury unless a jury trial is waived.” Kennagh v. McColgan, 25 N. Y. State Rep., 52. Apparently the plaintiff acquiesced in the action of the circuit in discharging the jury, and as we find no exception to the ruling in that respect we must assume that such acquiescence is equivalent to a waiver by the plaintiff of his right to have the issue of fact tried by a jury.

We think the decision of the circuit should stand.

Judgment affirmed, with costs.

Martin and Merwin. JJ., concur.  