181 A.D. 944 | N.Y. App. Div. | 1917
Order setting aside verdict and granting new trial affirmed, with costs. Under the pleadings plaintiff was bound by the lease which he had executed and retained. When he received from defendant the written notice to terminate the tenancy, but nevertheless allowed the six months to run out without removing the buildings, plaintiff elected to abandon them to the lessor. Although the order dispossessing plaintiff was afterwards reversed (Meyle v. Uffmann, 173 App. Div. 945), the relation of landlord and tenant was not thereby reinstated. (Niles v. Iroquois Realty Co., 57 Misc. Rep. 443.) The damages for being put out under a void warrant would ordinarily be for excessive force or any violence in the constable’s act of dispossession, or injury to the removed chattels; but plaintiff admitted he had suffered no such damages. Plaintiff’s goods, other than the buildings, were subject to his right of removal, within a reasonable time, after this termination of the tenancy. It might, therefore, be a question for the jury whether the constable’s remark that he would lock up plaintiff if he went back amounted to a refusal of such right to return and remove the chattels remaining on the demised property, in which case it would be within the jury’s power to find the value of such chattels, as for a conversion. (Lewis v. Ocean N. & P. Co., 125 N. Y. 341, 352.) Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.