Mastrofrancisco v. Mohawk Gas Co.

The following is the opinion delivered at Trial Term: Borst, J.: Defendant moves for a new trial after verdict in favor of plaintiff. On a former trial plaintiff was nonsuited and the Appellate Division on appeal reversed without comment as to the grounds. (198 App. Div. 959.) On the present trial I submitted the case to the jury with the suggestion that the plaintiff and his wife owned the premises on which the alleged trespass was committed, as tenants by the entirety. The complaint alleges ownership of the property trespassed on in the plaintiff, which is denied in the answer. During the lifetime of a husband and wife they hold the premises as tenants in common and each is entitled to one-half of the rents and profits so long as the question of survivorship is in abeyance. The jury should have been instructed in effect that the husband could only recover for the injury to his interests in the property. That interest would be affected by his age and that of his wife, his and her condition of health, and possibly other circumstances which would tend to show that a longer or shorter period would probably elapse during which he would have a tenancy in common with her, and his possibility of ownership over that of his wife. (Grosser v. City of Rochester, 148 N. Y. 235; Matter of Goodrich v. Village of Otego, 216 id. 112; Hiles v. Fisher, 144 id. 306.) The husband recovered for the entire damage to the premises caused by the acts of the defendant, and yet the wife had the same right of action for which the plaintiff recovered, and certainly if the husband died immediately after judgment was entered in this action, she would be entitled as against the defendant to the [588] damage to her interest in the premises. The Appellate Division properly held that the plaintiff could maintain the action, at least under the present pleadings, but it was not held that he could recover the entire damage for the tenants in common, caused by defendant's alleged wrongful act. The charge left it to the jury to find the entire damage to the premises from the alleged wrongful acts of defendant. There should, therefore, be a new trial when the right of the plaintiff for the injury to his interest in the premises, and that alone, may be properly submitted to the jury.