#### Andrew Miller et al., Plaintiffs, *v.*John J. Hennessy, Defendant.

(Supreme Court, Albany Trial Term,

June, 1905.)

License — Building erected by lessee — Landlord denied right to remove — Conversion — Pleading and evidence.

AVhere a lessee of land, by a written permission of the lessor, erects a building thereon with the right to remove it at pleasure or on leaving the premises, and about the time of his dispossession, for nonpayment of rent, expresses a determination to remove the building and the lessor denies his right so to do and commits an unjustifiable assault upon him and also unlocks the building and *404removes therefrom property of the lessee, the acts of the lessor amount to a conversion of the building.

The dispossession of the lessee for nonpayment of rent does not terminate his right to remove the building at that time.

Where the complaint in an action against the lessor of the land to recover the building alleges ownership thereof in the plaintiff to whom the title had been transferred by the lessee, and a demand therefor, evidence of defendant’s refusal to permit the removal of the building before the lessee was evicted, is admissible.

Trial by court of an action to recover a chattel, a jury Having been waived.

John Scanlon, for plaintiffs.' \

John T. Horton (John H. Gleason, of counsel), for defendant.

Cochrane, J.

The chattel in question consists of a building denominated a dance hall, constructed by the plaintiffs’ assignor on land of the defendant. Such land was leased by the defendant to the plaintiffs’ assignor by written lease for the term of one year from the first day of July, 1902, but with the option to the lessee of leasing the premises for the term of five years from the latter date. The lessee remained in possession under such lease until May, 1904, when he was dispossessed for nonpayment of rent, no new lease or agreement of rental having been .made in the meantime.

In April, 1903, the defendant gave to the lessee written permission to build the dance hall in question, such writing containing the provision that the lessee “ can remove the same at any time he wishes to or on leaving said premises.” Pursuant to such written consent the building in question was constructed at an expense of $850. It can be removed without injury to the freehold and no question is raised by the defendant on that point. Title to the building in question has been conveyed by the lessee to the plaintiffs herein who on September 2, 1904, caused a demand to be made of the defendant for said building.

*405As a general rule fixtures attached to the realty by a lessee must be removed before the latter yields possession to his lessor or the right of removal by the lessee will be lost. Dubois v. Kelly, 10 Barb. 496; Brooks v. Galster, 51 id. 196; Massachusetts National Bank v. Shinn, 18 App. Div. 276, 283; Van Vleck v. White, 66 id. 14; Talbot v. Cruger, 151 N. Y. 120. In the present case, however, the defendant refused to permit his lessee to remove the building. When the latter expressed his determination to do so, which was about the time of the summary proceeding resulting in his dispossession, the defendant denied his right of removal and committed an unjustifiable assault upon him. At the time tlie warrant of dispossession was executed by the officer the lessee was ill in a hospital. The conversation between him and the defendant and the assault seem to have occurred a few days prior thereto. The defendant denies the conversation but he does not deny the assault, and I find as a fact that the occurrence took place as testified by the lessee. The defendant also unlocked the building, which had been locked by the lessee, and removed therefrom property of the latter. Defendant virtually asserted dominion over the building and <■ his language and acts amounted to a conversion thereof. He actually inflicted severe personal injuries to the person of his lessee when the latter told him he intended on the following day to remove the building. Less significant acts then these have been held to constitute conversion. Farrar v. Chauffetete, 5 Den. 527; Lyon v. Kramer, 24 Hun, 231; Pinckney v. Darling, 3 App. Div. 553, 559. The lessee was not again required to encounter the personal violence and pugnacity of the defendant in an attempt to remove the building; but a more orderly and commendable method has been pursued of an appeal to the court rather than a resort to a breach of the peace and lawlessness. The summary proceeding resulting in the eviction of the lessee did not terminate the latter’s right to remove the building at that time. Lewis v. Ocean Navigation *&*Pier Co., 125 N. Y. 341. But even if it did, the refusal of the defendant to permit his lessee to exercise such right before the eviction would eliminate such question from the case.

*406Defendant claims that the evidence as to his refusal to permit the removal of the building before the eviction was inadmissible under the complaint herein. Undoubtedly the action might have been .maintained immediately thereafter without any further demand. The plaintiffs, however, having received a bill of sale of the building, saw fit to make a further .demand on September 2, 1904, which demand was alleged in the complaint and established on the trial. The complaint alleges ownership of the chattel by the plaintiffs and their right of possession of the same; and under such allegations they were entitled to show facts tending to prove their right to take the chattel. This evidence criticised by the defendant bears directly on plaintiffs’ right of possession by showing that their assignor did not abandon possession of the chattel at the time of his eviction1 and that the defendant refused at that time to permit the light of removal to be exercised. .Such evidence proves that on September 2,1904, when plaintiffs demanded of the defendant possession of the chattel, they as the assignees of the lessee had the right to such possession.

Plaintiffs are entitled to judgment for the recovery of said chattel or in case a delivery thereof cannot be had then for the value thereof which is hereby fixed at $600.

Judgment accordingly.