
    MAX DANZIGER, Respondent, v. JOHN BOYD, et al., Appellants.
    
      Use and occupation, evidence as to value of, in an ejectment action in a peculiar case—Objections not raising what might be a tenable ground— 2lesne profits, time when right to accrue.
    
    To prove the value of the use and occupation of a piece of land recovered by the plaintiff in an action of ejectment, which piece adjoined other lands of plaintiff on which a building was erected, and which piece could not or would not in the usual course of things be held, used or occupied separately from such other lands, it is admissible to prove what would be the rental value of plaintiff’s building with and without the land in dispute. The difference between the two would be the fact to be used by the jury in determining prima facie, the value or the use and occupation of the land in dispute.
    Strictly perhaps, a question which calls on the witness to make the calculation and state the result is objectionable, as calling for a result from a mental calculation on premises not given to the jury. But if so, that objection is not covered by objections that the question was hypothetical or that it related to a state of facts that did not exist.
    Mesne profits prior to the accruing of plaintiff’s title, cannot be recovered by him in an action of ejectment.
    Before Sedgwick, Ch. J., Tritax and Dugro, JJ.
    
      Decided March 14, 1887.
    Appeal by defendants from judgment entered on verdict of jury for plaintiff, and from order denying defendants’ motion for new trial made upon the judge’s minutes.
    The action was in ejectment and for damages for withholding the property. The rights of the parties, in the real estate in question, were passed upon in a former appeal in the action reported in 53 Super. Gt. 398. On the trial below the jury assessed the plaintiff’s damages at $1,000.
    Other facts appear in the opinion.
    
      
      Townsend & Mahon, attorneys, and of counsel for appellants, after arguing the questions decided in this action at a previous General Term, argued :
    I. The recovery of mesne profits for a period longer than the respondent held the title was properly objected to by the appellants.
    II. The jury were improperly permitted to estimate the value of the use and occupation of the premises upon consideration of what it would be if the part claimed had been added to the adjoining building.
    III. The objections to evidence made by appellants’ counsel, as to what would be the value of the use and occupation of the premises in suit if added to the other building, were good. , .
    
      Kaufmann & Sanders, attorneys, and Lewis Sanders, of counsel for respondent, urged :
    I. The objection to the question, What would be the value of the use and occupation of the premises in suit if you added to it the other building,” is not maintainable.
    It is based on the idea that if plaintiff is deprived of half his premises he cannot show what the half he is out of possession would produce if he added it to the other half in possession—that is to say, if the defendant, by unlawfully occupying the ingress to plaintiff’s building deprives him of the whole use thereof, plaintiff can only recover the value of the strip of land unlawfully occupied if used in an isolated condition. This cannot be.
    II. The objection to recovery before deed to plaintiff is not maintainable.
    There can be no recovery of damages for withholding land without recovery of the land itself. Code, § 1531; Kyle v. Kyle, 67 N. Y. 400.
    The deed to plaintiff is not returned in the record, and it cannot be affirmed that the court below erred in not confining plaintiff to damages from the time of the conveyance to him. The statute gives six years, and confines it to actions where the land is recovered. If the plaintiff’s grantor reserved the right, the fact must be made to appear.
    But the right was inalienable from the land.
    Again, it was not alleged as a defense that the plaintiff was not the real party in interest as to damages before conveyance to him.
   By the Court.—Sedgwick, Ch. J.

The former decision at General Term should be followed, and according to it the learned judge below correctly instructed the jury that the verdict should be for plaintiff, on the issue as to title and right to possession.

The real estate in question was a piece of land covered by a building over it, ended by a party wall. The defendants had taken possession up to the party wall. Legally they were entitled to possession no farther than to about five feet from the party wall. The disputed land was a part of an entire holding of plaintiff and could not, or would not in the usual course of things, be held, used or occupied separately. The plaintiff proposed to prove the rental value of the whole and asked what would be the value of the use and occupation of the premises in suit if you added it to the other building ?” meaning the plaintiff’s building. The only objections made to this were that the question was hypothetical, and referred to a state of facts that did not exist. The answer was, that it is worth $50 more, a month. There was a motion made to strike out the answer on the same objections that were made to the question.

It seems to me that if the question was what would be the rental value of the plaintiff’s building with and without the land in dispute the question would be competent. Woodhull v. Rosenthal, 61 N. Y. 383. The process would be to ascertain the value of the whole, and then to' assign to the disputed part its proportionate value according to its relation to the remainder. The difference between the amounts named under the question supposed, would be the fact to be used by the jury, prima facie. Strictly perhaps on the trial the witness should not have made the calculation directly stating the difference. This, however, did not affect the substance of the testimony and was not made the point of objection. There was no error in the ruling of the court.

It appears by the case that the plaintiff took title on February 11, 1884. The defendants’ counsel asked the court to charge the jury that the plaintiff is not entitled to claim any damages, except from the time he received his conveyance. The request was denied. The learned counsel have not produced any authorities upon the subject.

The general rule in action, for mesne profits, permits a recovery of annual value from the time of the accruing of plaintiff’s title. Sedgwick on Damages, 5 Ed. 133. The nature of the claim of the party kept out of possession is the same as that of the claim in an action of trespass for mesne profits or for use and occupation. The claim is personal to the plaintiff and must be subsequent to the time he took title. Before that, he was not wronged. The wrongful possessor did not before that time, take an occupation or profits that belonged to the plaintiff. The jury should have been charged as requested. Holmes v. Davis, 19 N. Y. 491.

For this reason the judgment should be reversed and a new trial ordered with costs to abide the event. If the respondent elects to remit the amount of damage recovered, the judgment may be so modified and affirmed without costs to either party.

' As there was no notice of appeal from the order denying the motion for a new trial, that order must stand, without any direction as to it on this appeal.

Truax and Dtjgro, JJ., concurred.  