1 Daly 325 | New York Court of Common Pleas | 1863
By the Court.
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
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
Judgment reversed.