
    August Trenkmann, Appellant, v. Minnie L. Schneider, Respondent.
    Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.
    Edward S. Clinch, for appellant.
    Theodore 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 facts, not home out by testimony; and also that the verdict is against the weight of the 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 this 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 of any of the.expert testimony, was error. It having already been established by the appellate court, 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 it did not produce its verdict, as against the evidence. 20 Misc. Rep. 226; 15 Wend. 647,.

The questions for the jury to determine were whether the tapping of the pipe was with the plaintiff’s knowledge and consent; arid, 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 by the evidence. .

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

Eitzsimohs, Oh. J'., and McCarthy, J., concur.

Judgment and order reversed, and new trial ordered,, with costs.  