such test, upon plaintiff's application, and upon renewal of the contract of warranty, the note was given. Evidence was offered and received by the court in support of this issue on the warranty; and the learned judge, in instructing the jury, stated, in substance: "That if they believed the testimony offered in support of the representation as to the quality, and that if they believe that it was not of the quality represented, the defense was established." The effect of these instructions was destroyed by compliance with the request stated above. If there was a warranty, the defendants had an absolute right to retain and use the coal, and offset the damages sustained by reason of breach of the warranty in an action brought to recover the price. Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. Rep. 428. There appeared to be an impression existing upon the trial that, unless the defendants expressed their dissatisfaction with the performance of the contract of sale by a return of the goods, and a rescission of the contract, it was a waiver of any claim for damage, because of a breach of the warranty, and that the retention and use of the coal without notice to the plaintiff was such an acceptance as would support the proposition above stated. This would be a defense inconsistent with the defense set up, i. e., that a warranty survived the acceptance of goods. The charge, as made by the learned justice, left no alternative to the jury. Under it there could be but one result, i. e., a verdict for the plaintiff; for the reason that it was not claimed by the defendants that they offered to return the coal, or notified the plaintiff of its use, or that the plaintiff acquiesced therein. If such facts were proven, they would tend to establish a rescission of the contract of sale. As above stated, it would be inconsistent with the defense set up. It would also have been improper to receive evidence in sup. port of such proposition, if offered. That the instruction did have an effect upon the jury is evidenced by the fact that one of the jurors inquired from the judge whether notice to the agent of the poor quality of the coal was tantamount to notice to the plaintiff. The judge, in reply, stated that it would, provided the person notified continued to be the agent of the plaintiff. The request, as charged, seriously affected the defendants' rights, and the verdict rendered upon the submission should be reversed. The judgment and order will be reversed, a new trial ordered, with costs to abide event.

EHRLICH and PITSHKE, JJ., concur.

BRIGHT et al. v. DEAN.

(City Court of New York, General Term. November 23, 1888.) SALE-ACTION FOR PRICE-INSTALLMEnt Delivery-COUNTER-CLAIM.

A counter-claim for breach of contract to deliver goods in installments, to be paid for in 30 days after delivery, cannot be maintained by a defendant who made default in payment of the goods delivered.

Appeal from trial term; D. MCADAM, Chief Justice.

Action for price of coal brought by Francis D. Bright and another against Walter Dean. Defendant appeals from judgment for plaintiff.

Argued before EHRLICH, McGown, and PITSHKE, JJ.

Scherick & Punnett, for respondent. F. C. Cantine, for appellant.

EHRLICH, J. The only question presented by the appeal arises upon defendant's counter-claim, and plaintiffs' reply thereto. Appellant pleads two contracts, each for the delivery of several boat-loads of coal, to be paid for in 30 days after delivery; and avers non-delivery, and damages by reason of a rise in the price of coal. The making of the contract is admitted, partial performance only is claimed, and a rise in the price is found by the court. But plaintiffs, by way of reply, allege that the contracts provided that defendant should pay for each boat-load in 30 days from delivery, and there is no dis

pute that appellant did not comply with this provision of the contracts, if the same formed a part thereof.

It cannot be doubted, upon the authorities cited by the learned chief justice below, and upon the plainest foundation principles of the law of contracts, that, if defendant made default in respect of the payments provided in his agreements, his counter-clain must fail. Upon this single question of fact the evidence appears to be so strong in respondent's favor that a contrary finding could be sustained with difficulty, if at all. The criticism of the language of the reply, on the part of appellant's counsel, cannot have weight in a court of review. In the first place, the language fairly imports that deliveries were to be made at different times; but, if not, the evidence to that effect went in without objection, and the pleading now must be held broad enough to make the testimony effectual. The judgment should be affirmed, with costs.

MCGOWN and PITSHKE, JJ., concur.

DOWNEY v. IN MAN & I. S. S. Co., Limited.

(City Court of New York, General Term. November 23, 1888.)

CARRIERS OF PASSENGERS-LOSS OF BAGGAGE-NEGLIGENCE.

Plaintiff took passage in defendant's vessel under a contract exempting defendant from liability, except for gross neglect. No evidence of negligence was offered, except the fact that the vessel was burned at sea. Held, that the question of negligence should have been submitted to the jury.

Appeal from trial term.

Action by Thomas Downey against the Inman & International Steam-Ship Company for damages for loss of baggage. Defendant appeals from a judgment for plaintiff.

Argued before BROWNE, EHRLICH, and PITSHKE, JJ.

Louis J. Grant, for respondent. Biddle & Ward, for appellant.

EHRLICH, J. Plaintiff sues defendant as a common carrier, alleging a loss of baggage through defendant's negligence. Defendant denied the charge of negligence; pleaded and proved a special contract, under which it was exempt from liability, except for gross neglect, and tending also to limit the damage claimed to the sum of $50. No proof of defendant's negligence was offered beyond the fact that defendant's vessel, upon which plaintiff took passage, was burned at sea. The court denied appellant's motion to dismiss for want of proof of negligence, and directed a verdict for plaintiff for $50 and interest. The controverted question of negligence was a question of fact, and not of law, and therefore it ought to have been submitted to the jury. This is true, although the precise circumstances attending the loss are not in dispute, since different inferences as to negligence might be drawn therefrom. The jury might have found from the facts established that defendant was guilty of gross negligence, but they were not bound to do so. Cochran v. Dinsmore, 49 N. Y. 253. The judgment should be reversed, and a new trial ordered; costs to abide event.

BROWNE and PITSHKE, JJ., concur.

MATTHEWS v. MCGRATH.

(City Court of New York, General Term. November 23, 1888.) SALE-ACTION FOR PRICE-WHEN MAINTAINABLE-AGREEMENT TO PAY CASH OR GIVE NOTE.

Where the purchaser of goods is given the option to pay in 30 days, or give his four months' note, and he fails to make such payment or give the note, action may be brought for the price at the expiration of the 30 days.

Appeal from trial term; PITSHKE, Judge.

This action, brought by George T. Matthews against Thomas McGrath, was commenced on June 2, 1887. The complaint alleges, in substance, that on April 21, 1887, plaintiff sold and delivered, and that defendant purchased, certain goods, viz., teas, of the value of $191.33, which defendant promised to pay; that by the terms of sale defendant promised and was bound to pay and settle therefor in 30 days, viz., before May 21, 1887; and that defendant has not paid for same. Defendant in his answer alleges, upon information and belief, that said goods were sold upon a credit of more than 30 days, which credit had not expired when this action was commenced, (June 2, 1887,) denies that said goods were of the value alleged, and, for a second, separate, and distinct defense, sets up a counter-claim for breach of contract, and alleges that said goods were of an inferior quality, and not as warranted, and that he offered to return the same. The goods were sold by John J. Kneeland, a salesman of the plaintiff, who testified, that he sold the goods in question about April 21, 1887; that the amount was $191.33; and that he knew that they were delivered; and further testified as follows: "I remember the conversation I had with Mr. McGrath on the day that I sold them. There was conversation as to terms. When he had called off the packages of each of the lots that he bought, I put them down; and then I was putting on the terms, ninety days, and he objected to that, and he said that he could buy, buyers' option, three per cent., on thirty days, or four months; and I said Let it be that way;' adding, if he didn't take advantage of the discount, that we would want a note when the thirty days was out. In other words, the agreement we made with Mr. McGrath was that he could have those goods on thirty days, three off, and buyers' option, or a four-months note if he didn't take advantage of the discount; if he didn't take advantage of the discount, there was to be a four-months note." "I simply told Mr. McGrath that if he did not take advantage of the discount,-three off, thirty days,—that we wanted his note at four months; and he never gave it." It was conceded by defendant's counsel "that the only defense relied on is the non-expiration of the credit given on the sale." The plaintiff testified that he called upon the defendant more than 30 days after the sale, and that he went there for the purpose of getting the note; that he did not give it, and has never got it. It also appears that, at the time of the sale, defendant was not asked about his standing. The court dismissed the complaint, and plaintiff appeals. Argued before BROWNE, EHRLICH, and McGown, JJ.

B. C. Chetwood, for appellant. James T. Byrne, for respondent.

McGown, J., (after stating the facts.) It being conceded that the only defense relied on was as to the non-expiration of the credit given on the sale, the only question to be considered is whether this action was prematurely brought; if so, the action of the trial justice in dismissing the complaint was proper. By the terms of sale, as testified to, and which testimony is uncontradicted, it is optional with the defendant to have the goods on 30 days, three off; but that if he did not pay cash for the goods in 30 days, with the discount off, he was to give a four-months' note in settlement. Not having given the note, and plaintiff having waited until after the expiration of the 30 days, the bill, at the option of the plaintiff, became due, and the plaintiff had then a good cause of action. Defendant promised to give a four-months note. Not having done so, and not having complied with his agreement, plaintiff had a right to assume that the credit was not required. I think that the trial justice erred in dismissing the complaint; that defendant should have been put upon his defense; and that the whole matter should have been submitted to the jury, under a proper charge of the justice as to the legal effect and proper construction and meaning of the agreement of sale of the goods in question. Without considering the question of fraud, or other questions

raised upon the trial, I think the judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

BROWNE and EHRLICH, JJ., concur.

PURTON . WATSON.

(City Court of New York, General Term. November 23, 1888.)

1. WASTE ALTERATION OF PREMISES-WAIVER-EVIDEnce.

In an action against a lessee for waste by making alterations in the demised premises, where defendant covenanted to make no alterations without prior written permission, evidence that the alterations were approved, and rent afterwards paid, is admissible to show a waiver of the written permission.

2 SAME TITLE IN PLAINTIFF ESTOPPEL TO DENY.

The lease estopped defendant to disprove the relation of landlord and tenant between the parties, whereby title in plaintiff was inferred, and it is immaterial that the complaint did not aver title in plaintiff.

3. APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW-JURISDICTION OF CITY COURT

WASTE.

The objection that the city court of New York could not try an action for waste under the Code will not be considered on appeal, where the point was not raised at the trial.

4. SAME-APPealable Orders-ALLOWANCE OF TREBLE DAMAGES.

An order giving treble the damages found by the jury, under Code Civil Proc. N. Y. § 1184, cannot be reviewed, unless specified in the notice of appeal, as provided by section 1301, relating to the review of intermediate orders.

Appeal from trial term.

This action, by Euphemia C. Purton against H. O. Watson, is prosecuted to recover damages for the defendant's acts destructively injurious to the premises by him held as a tenant of the plaintiff under a sealed lease for years. The answer admitted the making of "alterations" by defendant in said premises, but was otherwise a general denial. Upon this issue, on substantially uncontradicted evidence, the jury found in plaintiff's favor; the plaintiff's testimony proving the wrongs complained of in detail. The posi tion of the defendant and the evidence offered on his part were an attempt to justify his acts, and their consequences, by parol consents and waiver of estoppel on respondent's side; as also to show benefits conferred on the property by the "alterations" actually made. This testimony was mostly excluded. The premises had belonged to plaintiff's father, and she was his executrix when the lease was executed. The complaint did not aver or show whether plaintiff was at all seized of the premises, or possessed thereof, or whether she was entitled to any interest in the inheritance. The building was let to defendant to be used for the sale of bric-a-brac, furniture, and art decorations: and the defendant claimed that the alterations proved were by him made for properly fitting the premises for his use as a place of sale of bric-a-brac, furniture and art decorations. No pre-existing written license for such alterations was adduced herein; and the court ruled, throughout the trial, that the defendant could not justify his wasteful written license, and that the suit was an action for waste. After the verdict, the trial judge trebled it, on plaintiff's application, at an adjourned trial term. Defendant's motion to set aside the verdict and grant a new trial was denied, and defendant appealed.

Argued before NEHRBAS and PITSHKE, JJ.

Geo. M. Forster, for appellant. J. D. & N. E. Kernan, for respondent.

PITSHKE, J., (after stating the facts.) An action for waste is a proceeding ex delicto, and lies for whatsoever does a lasting damage to the freehold or inheritance, either intrinsically injurious thereto in contemplation of law, or shown so to be by proofs for the jury, (McGregor v. Brown, 10 N. Y. 117,

118;) a special and sufficient license in writing, to commit the waste done, being requisite to avoid such action of waste, and its consequences. Id. 119; Code Civil Proc. § 1651. And it is not competent for the defendant to prove, by either a parol agreement or the evidence of witnesses, that the waste resulted in a benefit to the premises. McGregor v. Brown, supra, 117. At common law, no person could maintain the action who had not an estate of inheritance in him at the time when the waste was committed; for the damages were recoverable for the injury done to the inheritance, but then there could be no intervening estate outstanding if the suit was to be brought. Robinson v. Wheeler, 25 N. Y. 255, 256, 258. But our statute law goes further, and authorizes the maintenance of an action of waste, by one seized of any estate in remainder or reversion, notwithstanding any intervening estate for life or years; and it may be prosecuted against any tenant for life or years, and the assigns of either, and also against co-tenants and guardians. And such interest need not continue to exist in plaintiff at the commencement of the action. Id. 257, 259. The law now, therefore, is that a reversioner or remainder-man, whether such in fee, or for life or years, may, if his residuary interest was wasted, bring either the real action of waste, or a suit for trespass for single damages alone. Id. 259. It is self-evident that in either controversy the plaintiff, to recover, must appear to be a party legally interested in the property damaged. See Carris v. Ingalls, 12 Wend. 73. The test of waste is the disherison of him in remainder or reversion as aforesaid, regardless of the amount of actual injury to the property done. Livingston v. Reynolds, 26 Wend. 122. The plaintiff must be one seized of some estate of reversion or remainder. Woodruff v. Cook, 47 Barb. 305, 309. The inquiry, in an action for waste, is confined solely to the damage done to the inheritance, entirely irrespective of whether the property by the alleged waste was to become more valuable, or less. Van Deusen v. Young, 29 N. Y. 9, 24, 28, 35; Livingston v. Mott, 2 Wend. 605. To entitle the plaintiff to a trebling of the damages found, the complaint must wholly be based upon the statute. Benton v. Dale, 1 Cow. 160. Although, under the Code, the former technical action of waste is abolished, (Harder v. Harder, 26 Barb. 409,) the general provisions of the Revised Statutes, regarding such former suit of waste, remain in force, and apply to an action in the nature of waste brought under the Procedure Code, (St. John v. Pierce, 22 Barb. 362, 367; Lang v. Wilbraham, 2 Duer, 171.) If the present plaintiff were, in fact, interested in the house and lot let to defendant, the latter, as tenant, would be necessarily liable to a suit for waste in making extensive alterations, as herein. shown, detrimental to the inheritance, though done under a power to make alterations not to be injurious to the premises. Agate v. Lowenbein, 57 N. Y. 604, 607-610, collating the authorities on subject of waste. Whether the defendant's acts caused injurious waste, in their effect upon the property, or were reasonably required for the enjoyment of the premises as the same were let, is not a question of law for the court, but entirely a matter of fact to be left to the jury. There are two kinds of actionable waste, namely, either "negligent waste, or "wanton and malicious waste." The action for either kind is maintainable at once after its commission, and the theory of the action is to compel the wrong-doer to make satisfaction, equivalent to a restoration of the premises to their previous condition. Agate v. Lowenbein, supra, 612, 613. The inquiry is as to the injury to the reversion; and good faith on the tenant's part is no defense where the act, on general principles of law, amounted (as herein) to waste. Id. 614; Robinson v. Kime, 70 N. Y. 147, 151. A tenant has no right to exercise any act of ownership. He has merely the right of user, except as modified by special written agreement between him and the reversioner. 10 Bac. Abr. 434; Agate v. Lowenbein, supra, 614, 615; London v. Greyme, Cro. Jac. 182;. Samuel v. Johnson, 1 Dyer, 65; Cole v. Green, 1 Lev. 309.