Stockham v. Borough Bill Posting Co.

Jenks, P. J. (dissenting):

I dissent. In Borough Bill Posting Co. v. Levy and American Bill Posting Co. v. Borough Bill Posting Co. (144 App. Div. 784), decided herewith, we have held that such an instru.ment as is under consideration in this case is an easement in gross for one year from the date thereof, irrevocable during the period specified. The plaintiff complains that he is the owner of the vacant premises, inclosed by a fence, which in April, 1910, was unlawfully removed and destroyed and its material taken away, all by the defendant. . The answer is a general denial. At the close of the case the court gave judgment for the defendant, in that, as the lease is still in existence" * * •* the plaintiff’s complaint as to damages sustained is premature.” The learned court expressed the opinion that, if the defendant neglected to replace the fence at the termination of the lease, the action would lie.

The proposition of the plaintiff is that this is an action for waste, which is not premature. It is true that such an action may lie during the-continuance of a tenancy, for the question is whether the tenant, when he did the wrong, caused injury which affected the reversion. (Agate v. Lowenbein, 57 N. Y. 604.) But I think that the plaintiff did not prove a cause of action. The fence inclosed the premises when this instrument was made. But the instrument contemplated the erection of a *646fence by the defendant on said lots for billposting purposes, and this is further indicated by the final provision therein, that all fences erected by the company remain its property, etc. It appears that plaintiff’s fence was on the building line, and was six feet high. If the defendant sought to set up a fence, without disturbance of plaintiff’s fence, it must either place its own fence before or behind the existing fence. To place such fence before would be to place it outside of the building line, and it-would not be located on said lots,” but upon the public thoroughfare as an encroachment. To place such fence behind a fence six feet high would presumably impair its use for bill-posting purposes. And there is evidence that'the existing fence was unsuitable for such purposes. I think that a fair construction of the contract contemplated the substitution of á fence by the defendant for that of the- plaintiff, and that, therefore, the defendant with impunity might remove the plaintiff’s fence so far as it was necessary. ' And I think that an action for waste would not lie perforce only of such a removal . during the life of the instrument. Upon the expiry of the period, inasmuch as the instrument provided that any fence erected by defendant would remain the property of defendant, other questions might arise involving an obligation of replacement, and perhaps waste; ' which, however, it is not now necessary to consider.

Although plaintiff’s fence, when it was in place, would be ■ regarded as realty (Mott v. Palmer, 1 N. Y. 573; Goodrich v. Jones, 2 Hill, 142), yet, when it was detached from the realty by the defendant, it became the personal property of the plaintiff (Mott v. Palmer, supra; Mooers v. Wait, 3 Wend. 106); and if the material were converted by the defendant an action for trover would lie. (Agate v. Lowenbein, supra ; Mooers v. Wait, supra.) In the former case the court say: Even when the tenant is unimpeachable for waste, if he' exceeds his authority, trover ■ will lie for the articles severed from the estate. (Lushington v. Boldero, 15 Beav. 1, and cases cited in note to page 10; Wellesley v. Wellesley, 6 Sim. 497.)'” But the present action cannot be regarded as one of trover.

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