#### JACKSON v. BRANDON REALTY CO. et al.

(Supreme Court, Appellate Term.

November 14, 1906.)

1. Judgment—Conformity to Pleadings—Nature of 'Action.

Where an action is brought to recover “damages to real property and trespass in taking * * * and converting mortgaged property,” a recovery should not be permitted, without an amendment of the complaint, for

*1006an impairment of plaintiff’s mortgage security, though the evidence shows such a cause of action.

[Ed. Note.—For cases in point, see vol. 30, Gent. Dig. Judgment, §§ 436, 437.]

2. Mortgages—Eight oe Parties—Third Person—Impairment oe Security.

One intentionally impairing the security of a mortgage of realty by removing any part of the realty is liable in an action for damages by the mortgagee.

[Ed. Note.—‘For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 553, 560, 561.]

3. Same—Intent.

One knowingly impairing the security of a mortgage of realty by taking away a part of such realty is chargeable with a design to effect that object, though his leading motive may have been his own gain.

[Ed. Note.—For cases in point, see vol. 35, Gent. Dig. Mortgages, §§ 553, 560.]

4. Same—Nature oe Wrong—Purpose oe Tort-Feasor.

The cause of action arising on the impairment of the lien of a mortgage of realty by carrying away a part of the realty is a tort, to support which the facts must warrant an inference of fraudulent intent or wrongful purpose to impair or destroy the lien.

[Ed. Note.—For cases in point,'see vol. 35, Gent. Dig. Mortgages, §1 553, 560.]

5. Same—Trespass.

A mortgagee, having but a lien, and no title, and no possession of realty, cannot maintain an action against a third person for damages to the real property, or trespass.

[Ed. Note.—For cases in point, see vol. 35, Cent. Dig. Mortgages, § 560.]

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Henry H. Jackson against the Brandon Realty Company and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.

Alfred & Charles Steckler, for appellant Ruelius.

Hulbert & Webb, for appellant Brandon Realty Co.

Stephen H. Jackson, for respondent.

'PER CURIAM.

It seems to be conceded that the action was brought to recover “damages to real property, and trespass in taking, carrying away, and converting mortgaged property.” It was tried as though an action to recover damages for impairment of plaintiff’s mortgage security, and probably the court allowed a recovery as though for such damage. This, however, should not have been done, even though the evidence showed such a cause of action, until the complaint had been amended. It seems that, if a person intentionally impairs a mortgage as a security by removing any part of the real property covered by a mortgage, he does a wrongful act against the mortgagee, and is liable in an action for damages by the mortgagee for the impairment of the mortgage as a security. If, in the present case, the defendant Ruelius knew that by taking the sashes from the premises the value of plaintiff’s mortgage as a security would be impaired, be would be legally chargeable with a design to effect that object, al*1007though his leading motive may have been his own gain. Van Pelt v. McGraw, 4 N. Y. 112-114.

Such a cause of action as has been referred to is in tort. Its gravamen is a fraudulent intent or wrongful purpose to impair or destroy the lien, and to support such an action the facts must be such as to warrant an inference to that effect. Hovey v. Elliott, 118 N. Y. 139, 23 N. E. 475. This is so, as the lien of the mortgage gave the mortgagee no title to the land. According to the evidence presented at the trial, the mortgagee had but a lien, and no title to the land, and no possession. There could, therefore, have been no recovery for damages to real property or trespass. It does not appear from the evidence that Ruelius knew the plaintiff had a mortgage upon the property. It might be naturally guessed that he knew of it, but it could not by fair inference be said from the evidence that he knew it. The evidence as to his receipt of the check and his presence at the office falls short of evidence warranting a finding that he knew of plaintiff’s mortgage.

The judgment will be reversed, and a new trial ordered, with costs to appellant to abide the event.