By the Court.
Brady, J.When the term of the plaintiff expired docs not appear, but it seems from her evidence, though on that subject it is- in .conflict with the *326defendant’s testimony, she had not yielded possession when the fixtures were taken away. The Justice, ignoring the question presented on these facts, decided in favor of the defendant, on the ground that no demand had been made of him for the fixtures. This question was not in issue and was immaterial. The rule in reference to the right of the tenant to remove fixtures, and which necessarily formed the basis of the investigation in this case, has been stated to be that things annexed to the freehold, if movable at all, must he moved before the expiration of the tenancy, (Poole’s case, 1 Salk. 368: Lyde v. Russell, 1 Barn. & Ald., 394 ; Marshall v. Lloyd, 2 Mees. & Wels., 450 ; Ex parte Quincy, 1 Atk., 477; Lee v. Risdon, 7 Taunton, 191; Colgrave v. Dias Santos, 2 Barn. & Cress., 76 ; Reynolds v. Shuler 5 Cow. 323 ;) and it is founded on the supposed abandonment of the fixtures, when left on the premises, (Lord Kenyon in Penton v. Robart, 2 East, 88; Amos & Ferard on Fixtures, 87 ;) or that they become a gift in law to him in reversion, and are not removable (per Holt in 1 Salk. 368, supra.)
The rule, however, is not as broadly stated in England or in this State. The tenant may remove the fixtures after the term has expired, and during his possession (Penton v. Robart, supra ; Weston v. Woodcock, 7 Mees. & Wels. 14 ; Dubois v. Kelly, 10 Barb. 496 ; Holmes v. Tremper, 20 Johns. Rep., 29,) and if he enters after the expiration of his term to remove fixtures owned by him, is only a trespasser as to the entry (Lord Kenyon in Penton v. Robart, supra ; Holmes v. Tremper, supra.) It is very clear "from these authorities that the decision of the Justice was founded upon an immaterial issue.
Tlie question on the evidence was whether the defendant took' the fixtures during tlie possession by the plaintiff. If lie did, then he was liable in damages. The right of the plaintiff to remove during possession cannot well be doubted, and the violation of that right must subject the wrongdoer to an action. If the fixtures had been removed by the defendant after the plaintiff’s abandonment of them by yielding.. possession, sucli removal could not, on the authorities, be regarded as a tortious taking, though the detention mi¿hi be held to be unlawful. In the latter ease, a demand would be necessary, and perhaps a serious *327question might arise as to the right of the plaintiff to maintain an action of trover to recover their value. The Justice seems to have regarded a demand necessary In any event, for upon its absence from the plaintiff’s evidence he found against her. The finding is the move objectionable for the reason that the defendant made no motion for a dismissal of complaint on the ground referred to or called upon the plaintiff to make the proof omitted. I think the judgment should be reversed.
Judgment reversed.