19 N.Y. St. Rep. 6 | City of New York Municipal Court | 1888
(after stating the facts.) An action for waste is a proceeding ex delicto, and lies for whatsoever does a lasting damage to the freehold or inheritance, either intrinsically injurious thereto in contemplation of law, or shown so to be by proofs for the jury, (McGregor v. Brown, 10 N. Y. 117,
A lessor’s suit for waste, ordinarily involving a valuation and special judgment, as aforesaid, is, therefore,1 at its commencement, not an action wherein the complaint asks judgment for a sum of money only, or one to recover a chattel or chattels, or to foreclose a lien, nor is it to take a confession of judgment; which several cases embrace the whole jurisdiction of this court as regards subject-matter. This want of jurisdiction of a case of. waste under the Code is alike, whether the matter is malicious or mere negligent waste. Forfeiture or partition is incidental to either kind of waste. The “ action for waste” in the Civil Procedure Code is separately classed, among actions relating to real property,in title 1 of chapter 14. Under this title, a notice of lis pendens can be filed in waste, againstthe plaintiff’s lessee, (section 1670,) so as to bind the latter’s transferees; and the judgment in waste, if an award of a forfeiture or a partition has been obtained in the case, must specially direct the delivery of possession of the property to the person entitled thereto, (section 1675; and see section 1681.) In considering the nature of this Code action for waste between lessor and lessee, as a real action in rem, the fact that the
The plaintiff’s lease to defendant being under seal, only Mrs. Purton could sue on it; and any evidence to disprove the relation of landlord and tenant between plaintiff and defendant, and its inferring in Mrs. Purton title, would be incompetent on the defendant’s part. Schaefer v. Henkel, 75 N. Y. 378. But for this direct estoppel by deed, so created solemnly between the parties to this suit by virtue of their said sealed document, barring all denial by defendant of the plaintiff’s title in and to said premises as defendant’s landlord, the foregoing reasons, hereinabove expressed, would seem to require a reversal of the judgment and orders appealed from herein. Ellsworth v. Putnam, 16 Barb. 568; Hutchins v. Smith, 63 Barb. 251. It must be here added that, if there was any error committed herein on the trial, in the manner of
As regards the appellant’s position now, on the appeal, that the court below could not try this cause as a suit under the Code for waste, it suffices to say that the point was not in any way raised on the trial, and the appellant is now, therefore, concluded on that point. Had he called attention to such a question, the point could have been duly ruled on and remedied by continuing the cause as one merely for unlawful trespass, and the trial then in that way would have decided the whole controversy between the plaintiff and defendant, and disposed of it, treating the complaint as conformed to the admission of lessor’s title to the premises by the lease itself as executed. The .appellant has properly had his day in court. 2To evidence, appropriately adduced, was rejected, and' the exceptions to testimony admitted are without force. It follows that the judgment and the order denying new trial should ibe affirmed, with costs.
The order increasing the verdict was not appealable, except upon the appeal from said judgment. It is not in itself appealable being a trial term ■order, but can only be reviewed by being specified in the notice of appeal from the judgment. Code Civil Proc. §§ 1301-1316; Cameron v. Insurance Co., 13 Jones & S. 628; Uline v. Railroad Co., 79 N. Y. 175. The notice of .appeal from the judgment herein does not specify or refer to said order increasing the verdict. It is hence not before us for consideration. The appeal taken from the said order, increasing the verdict herein, under Code, §§ 1184,1651, 1655, must therefore be dismissed, with costs of that appeal.
Nehrbas, J., concurred.