5 N.Y.S. 345 | N.Y. Sup. Ct. | 1889
The plaintiffs are lessees of certain lands in the county of Boekland, under a lease which gives them the exclusive right to the demised premises, and the sole and exclusive right to quarry and remove stone therefrom during the term of 10 years. The defendants are lessees of an adjoining lot from the same lessor, and they entered upon the quarry of the plaintiffs, and took out a quantity of stone, and cut it, and took it to Hew York, and this action was brought for the recovery of the value of the stone so taken. The cause was tried at the circuit, and a verdict was rendered in favor of the plaintiffs, and the defendants have appealed from the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court.
Upon the trial at the circuit the defendants contended against the right of the plaintiffs to recover damages for the conversion of the stone in question, because the instrument under which they held the quarry conveyed to them no title to stone which they did not take out, and only gave them the right to stone which they took out themselves, and a motion was made in the early stage of the trial to dismiss the complaint on that ground. That motion was denied, and we think the ruling was not erroneous. The defendants were
Pratt, J., concurs.