Appeal from a judgment entered upon a verdict for $133.88 damages, in an action for tbe conversion of hay. Tbe record does not show that a motion for a new trial was denied on tbe minutes, though the notice of appeal assumes the existence of such an order. James Giles, defendant, leased to Lewis Converse a farm and seven cows from April 1, 1883, to April 1, 1884, and agreed to furnish sufficient hay to keep the cows to grass in 1883. Converse agreed to pay $1Y5 rent, * * * and “ to feed out all the fodder on said farm that is raised on said farm, * * * and winter said stock (seven cows) through to grass in the spring of 1884 on hay.”
In December, 1883, the plaintiff had an execution against Con*319verse, under wbicb about twenty-five tons of tbe bay grown upon tbe farm in 1883 was sold, tbe plaintiff becoming the purchaser. Tbe defendant prevented tbe plaintiff from removing tbe hay, and this action was brought to recover its value. Tbe defendant insisted that under tbe clause above quoted from the lease be was entitled to bold the bay as against the plaintiff,- because: (1). Converse left without fully paying tbe rent. (2). Tbe hay was required to keep tbe cows through to grass in 1884. (3). He was entitled to tbe manure wbicb would be made by the hay being fed on tbe farm. Tbe evidence does not show that tbe plaintiff before be purchased bad notice of tbe provisions of tbe lease; it only appears that defendant forbade tbe sale.
Tbe learned trial judge held that the plaintiff was entitled.to recover tbe value of the bay, and directed the jury to assess tbe damages, to wbicb defendant excepted. Tbe defendant also asked tbe court to rule that be had title to the bay under tbe lease, and also asked to go to tbe jury upon tbe construction of tbe contract. Johnson v. Crofoot (53 Barb. 574; S. C., 37 How., 59); Steffin v. Steffin (4 N. Y. Civil Pro. R., 179; S. C., 17 N. Y. Weekly Dig., 418); McCombs v. Becker (3 Hun., 342; S. C., 5 T. & C., 550), are decisive that tbe title to tbe bay was in tbe tenant instead of in the landlord, and that it was subject to sale upon tbe plaintiff’s execution.
Tbe judgment must be affirmed, with costs.
Harden, P. J., and Boardman, J., concurred.Judgment affirmed, with costs.