#### Woods *v.*Kernan.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

1. Forcible Detainer—Reversal—Action by Tenant for Damages.

A tenant was dispossessed in a summary proceeding, in which he made default; and, on appeal to the county court, it was decided that there was no error of law for which the judgment could be reversed, but that the default might be opened, and judgment was entered that on payment of costs the final order awarding possession be reversed, and a new trial directed, which resulted in favor of the tenant. *Held,*that he has an action for damages under Code Civil Proc. N. Y. § 0263, providing that, if the final order is reversed on appeal, the one dispossessed may sue for the damages he has sustained.

2. Same—Failure to Re-Enter.

In such case the failure of the tenant to re-enter after restitution was ordered, does not bar 'his action for any loss he had suffered to that time.

8. Same—Measure of Damages.

In an action by a tenant for being unlawfully dispossessed by a summary proceeding, the final order in which has been reversed on appeal, he may recover the value, over and above the rent, of the use of the premises, including the crops and fruit he might have gathered, up to the time restitution was ordered.

Appeal from circuit court, Onondaga county.

Action by a tenant for having been unlawfully dispossessed by a summary proceeding, which was reversed on appeal. Judgment was entered on a verdict of $15 for the plaintiff, who moved for a new trial on the minutes. The verdict being less than $50, the defendant recovered costs. The plaintiff appeals.

Argued before Hardin, C. J., and Martin and Merwin, JJ.

*W. Gilbert,*for appellant. *Goodelle & Nottingham,*for respondent.

Merwin, J.

This action was brought by the plaintiff to recover damages for being unlawfully dispossessed from certain premises in the city of Syracuse, rented by plaintiff from defendant. On the 2d August, 1888, this defendant, claiming that the tenancy expired on the 1st August, 1888, instituted summary proceedings for the removal of the plaintiff. A precept was obtained from a justice of the peace, returnable at4p. m. of the same day. This was duly served at 1:30 p. m. The present plaintiff, being the defendant in that proceeding, did not appear; and judgment by default was rendered against him, and a warrant issued to dispossess him. Under this warrant the defendant therein was dispossessed on the 7th August. He appealed to the county court, his appeal being *based—First,*upon errors of law; and, *secondly,*upon affidavits presented for excusing his default, and showing a defense, and asking for a new trial before the same or another justice. The matter was duly heard in the county court, and it ,was there decided that no error of law existed for the reversal of the judgment, but that the default might be opened upon the payment of $10 costs. Accordingly, on the 15th January, 1889, judgment was entered providing that, upon payment of said costs, “then the final order awarding possession of said premises to the plaintiff be, and the same is hereby, in all things reversed, and a new trial directed before S. F. Belknap, a justice of the peace in Syracuse, at his office, on 22d January, 1889, at 2 o’clock in the afternoon, and restitution of the premises described *655in the petition is hereby ordered and awarded to appellant. ” The costs were paid, and the case came to trial as directed; and on the 28th January judgment was given in favor of the defendant therein, dismissing the petition, with costs, thus determining that at the time of the commencement of the proceedings, on 2d August, 1888, the landlord was not entitled to possession. The claim of the tenant was that his tenancy did not expire until May 1,1889. The tenant did not re-enter, but commenced this action on March 1, 1889.

In the trial under review, it was shown on the part of the plaintiff that his household goods were considerably damaged at the time of their removal by the officer with the aid of the defendant or her agent. It was also shown that there was then in the garden on the premises a crop of potatoes and of corn of some value, and also pear trees upon which there was fruit in considerable quantity, and evidence was given as to their value. At the close of the plaintiff’s case, it was held by the court that the recovery must be limited to the actual inj ury by the acts of the defendant to the personal property of the plaintiff, and that plaintiff could not recover damages occasioned by the removal, nor for the loss of the possession, of the property, nor for any fruit growing on the premises, nor any of the garden crops. The plaintiff duly excepted. It was assumed that, before the order was made for restitution, the crops and the fruit had been used or disposed of by the defendant. The theory of the court seems to have been that the plaintiff, by reason of his default, was estopped from claiming any damages occasioned by the removal. Assuming that this may be so, so far as any inconvenience may have arisen by the act of removal, or any expense may have been incurred in the removal, of his goods, after the dispossession or in obtaining another dwelling, I fail to see how it should apply to any loss the plaintiff may have sustained in being deprived unlawfully of the use of the property, and in being prevented from gathering crops that he was entitled to have. If the use of the premises, including the crops and fruit that he might have gathered, from the time he was put out to the time restitution was ordered, was of material value over and above the rent he would have been obliged to pay, I see no good reason why the defendant should have the benefit of it. Ho point was made as to the rule of damages in such a case. The ruling denied any right of recovery at all on that basis. It was not claimed that the plaintiff was in default in the payment of rent.

But it is suggested that there was no reversal, within the meaning of section 2263 of the Code of Civil Procedure, which provides for the recovery of damages by the person dispossessed. There was, in form, a reversal. The adjudication was wiped out, and it was afterwards, in fact, finally determined that the landlord was wrong. In *Hayden*v. *Sewing-Machine Co.,*54 N. Y. 221, it was held that the ground of reversal in such a proceeding was immaterial. ¡Nor did the failure of the plaintiff to re-enter deprive him of the right to recover for any loss that he had suffered up to the time that restitution was ordered.

I think the court erred in restricting the right of recovery to the injuries to the goods in the removal. The plaintiff was also entitled to recover for his loss in’ the use of the premises from the time he was dispossessed to the time restitution was ordered, and, as elements in the loss, the value of the crops and fruit should have been considered. By reason of the error above stated, there should be a new trial. Judgment and order reversed on the exceptions, and new trial ordered; costs to abide the event.

Hardin, P. J., and Martin, J., concur.