App. Div.]

Second Department, May, 1908.

tion of the complaint does not save the situation, for the interests of the city and those of the appellants are adverse and, of course, one defendant cannot be bound or prejudiced by the allegations of a codefendant whose interests are adverse.

The time the action was commenced and hence the very validity of the lien, to foreclose which the action is brought, was an issue in the case raised by the pleadings and the burden was on the plaintiff; there is no finding and no evidence to meet this burden, and hence the judgment must be reversed as far as the plaintiff's claim is concerned; the claims of the laborer defendants provided for in the judgment suffer from the same infirmity and as to them it must likewise be reversed, and the city's claim is so closely allied, at least in its establishment, that it must fall with the balance of the judgment.

I advise that the judgment be reversed and a new trial ordered before another referee, costs to abide the event.

Judgment of the County Court of Westchester county affirmed, with costs.

JAMES P. GRAHAM, Appellant, v. JAMES PURCELL, Respondent.

Second Department, May 1, 1908.

Real property- when sand is personalty - conversion.

Sand placed on land for storage and not for the improvement of the soil remains personalty and may be the subject of conversion.

Where plaintiff deposited sand on the land of another without permission and the land was later sold and the grantee disposed of the sand to a third party, both the grantee and the purchaser of the sand are liable for conversion, although the former did not know of plaintiff's ownership.

Demand on the grantee of the land was not necessary.

It is immaterial in such action that the plaintiff trespassed when he placed the sand on the land.

APPEAL by the plaintiff, James P. Graham, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of March, 1907.

Second Department, May, 1908.

[Vol. 126

James P. Kohler [Benjamin F. Norris with him on the brief], for the appellant.

Edwin C. Low [Alfred Pagelow with him on the brief], for the respondent.

JENKS, J.:

The plaintiff placed his building sand upon the land of Meeks without permission from Meeks. Meeks sold the land with the sand upon it to Abrams. Abrams sold and delivered the sand to Purcell. This action is against Abrams and Purcell for conversion. The court dismissed the case as to Abrams at the close of plaintiff's case, and at the close of the whole case gave judgment for Purcell. The plaintiff appeals. I think that the court erred in each disposition.

As this sand had been taken from its bed it was a subject of conversion (Land & Gravel Co. v. Commission Co., 138 Mo. 444), unless it thereafter became realty. That sand could not be regarded as realty, for it is clear that it was not put down for improvement or change of the soil, but merely for storage. There is no proof that Meeks ever regarded or treated the sand as annexed, and there is proof that Abrams did not, inasmuch as he sold it as personal property on the avowed theory that he owned it because he had bought land with the sand upon it. As Abrams sold and delivered the sand it was immaterial that he was ignorant of the plaintiff's ownership or honestly believed that he himself was the owner thereof. (Pease v. Smith, 61 N. Y. 477.) And no demand upon Abrams was necessary, inasmuch as he sold and delivered up the sand to the purchaser. (Ibid; Glassner v. Wheaton, 2 E. D. Smith, 352.) Of course, the owner of a thing may abandon it, and he who gains possession thereof may thereupon become the owner of it. So it is entirely possible that one might deposit sand upon the land of another and by his conduct thereafter justify the owner of the land in the belief that the ownership had been abandoned, that he thereupon was clothed with ownership and, therefore, was entitled to dispose of it. But the proof as to abandonment thereof must be unequivocal, cogent and decisive. And such proof was not presented in this case. As to Purcell it is established clearly that he knew when he bought and took away the sand that the plaintiff asserted his ownership thereof. But Purcell

App. Div.]

Second Department, May, 1908.

turned his back on the plaintiff and dealt with Abrams on the theory that the latter owned the sand because the plaintiff had deposited it on the land. (See Babcock v. Gill, 10 Johns. 287.) It matters not if the plaintiff trespassed when he placed the sand upon the land, for that wrong neither divested him of his property nor deprived him of his right to recover it or its value by legal proceedings. (Davis v. Davis, 72 App. Div. 593.)

The judgment is reversed and a new trial is ordered, costs to abide the event.

WOODWARD, HOOKER and MILLER, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

JOHN NEIDERSTEIN, JR., Respondent, v. MARY B. CUSICK, Individually and as Executrix, etc., of MARTIN CUSICK, Deceased, Appellant.

Second Department, May 1, 1908.

Real property — covenant

specific performance - damages.

Where a landlord makes a breach of his covenant to renew a lease, and later is unable to perform specifically, because the land has been condemned, his tenant may recover damages.

The measure of damages is the difference between the rental value of the premises for the full term specified and the rent reserved in the lease. The part of the renewal term during which plaintiff had occupied as defendant's tenant should be excluded in computing the damages, but not the time during which plaintiff occupied as tenant of the city which took the lands by eminent domain.

APPEAL by the defendant, Mary B. Cusick, individually and as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.

William E. C. Mayer, for the appellant.

Alfred J. Gilchrist [Jacob Neu with him on the brief], for the respondent.

Second Department, May, 1908.

[Vol. 126.

JENKS, J.:

The lease to the plaintiff from the defendant contained a cove nant for a renewal of a term to begin immediately after April 1, 1903. The tenant sued for a specific performance of that cove nant. The defendant's demurrer which challenged any cause of action was sustained at Special Term and in this court (83 App. Div. 36), but was reversed in the Court of Appeals. (Neiderstein v. Cusick, 178 N. Y. 543.) The defendant answered and now appeals from the judgment for the plaintiff rendered upon trial. The Special Term found that specific performance was impossible, in that the city of New York condemned the premises for park purposes and took title thereto on April 25, 1904.

The judgment of the Court of Appeals is the law of this case, and under it the plaintiff was entitled to a renewal beginning immediately after April 1, 1903. The plaintiff as a lessee (and such Iwould have been his status but for the refusal of the defendant to keep her covenant) would have been entitled to compensation for the paramount eviction by the city in its exercise of the right of eminent domain. (Greater N. Y. Charter, § 980.*)

The learned Special Term applied the correct rule of damages, viz., the difference between the rental value of the premises for the full term specified, namely, five years, and the rent reserved in the lease. (Trull v. Granger, 8 N. Y. 115; Dodds v. Hakes, 114 id. 265; Eastman v. Mayor, 152 id. 473; Larkin v. Misland, 100 id. 212.) But the amount of the judgment is erroneous. The court found without exception that the plaintiff remained in possession and in occupancy as the tenant of the defendant down to April 25, 1904. Hence in determination of the amount of the damages the period of such possession and occupancy must be excluded from the five years' term. For the plaintiff during that time enjoyed from the landlord all that he was entitled to if the renewal of the lease had been given. The court also found without exception that the plaintiff remained in occupation and possession as the tenant of the city until on or about the month of September, 1905, and it is contended that this period should likewise be excluded from the five years' term. But the defendant in no way procured such

*See Laws of 1901, chap. 466, § 980. Since amended by Laws of 1905, chap. 299, and Laws of 1906, chap. 658.- [REP.

App. Div.]

Second Department, May, 1908.

tenancy, the fact thereof was res inter alios acta, and such tenancy was not afforded or permitted by the city of New York in order to discharge in part the liability of the defendant. For these reasons I think that the point is not well taken. (Suth. Dam. [3d ed.] § 158; see as to the principle, Appleton v. Marx, 191 N. Y. 81.) As between the plaintiff and the defendant, any concession or grace on the part of the city should inure to the incidental benefit of the plaintiff rather than to that of the defendant, the wrongdoer. The court plainly cast the damages from the conclusion that the rental value of the premises was $2,000 a year in excess of the rent reserved. The evidence justifies this. I think, however, that it is not necessary to grant a new trial, for the data permit a certain correction. There should be deducted from the term of five years the period during which the plaintiff was in possession and in occupancy of the premises as tenant of the defendant, and the damages cast in the fashion followed by the court for the remainder of the period.

The judgment is reversed and a new trial is granted, costs to abide the event, unless within twenty days the plaintiff consent to a reduction of the judgment in accord with the opinion, in which event the judgment as so modified is affirmed, without costs. Settle the order before Mr. Justice JENKS.

WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff consent to a reduction of the judgment in accord with the opinion of JENKS, J., in which event the judgment as so modified is affirmed, without costs.