Opinion of the Court, by INGRAHAM, J.

That erecting and maintaining a structure like that of the defendant's on the lands of another is an injury to the lands and is a trespass upon the land, has been determined in the action brought by the same plaintiffs, as executors, to recover for damages sustained by the testator in his lifetime. See 54 Super. Ct. 322, affirmed by the court of appeals, 113 N. Y. 626. I think it is clear, therefore, that the trespass committed by the defendant was an injury to the “inheritance," and that, under the provisions of section 1665, the plaintiffs were entitled to recover for the damages caused by the trespass.

But I do not think the tenant, under the lease of May 15, 1880, was even in possession of the property upon which the trespass was committed. Richard Mortimer was the owner of the property, and of the fee of one half of the streets at the time the lease was made. For several years before that time the elevated railroad had appropriated the street in front of his premises for the purpose of a railroad. That being the condition of affairs, Richard Mortimer leased to Gregg "the property known as Numbers 1, 3, 5 and 7, Bowery, and 2, 4, 6 and 8, Division street, being the same premises very recently occupied by the party of the second part.

It is clear that this would not include either the fee of the street or the easement in the street that the lessee had not occupied for several years and that the defendant had appropriated several years before. I think, therefore, that this property in the street was never leased by Mortimer to Gregg, and was never in the possession of the tenant. The ownership of the property, however, passed under his will to the plaintiffs, and plaintiffs are entitled to recover for a trespass thereon.

I think, therefore, that plaintiffs were entitled to recover for the damages sustained by reason of the trespass from the time the plaintiffs became the

Opinion of the Court, by INGRAHAM, J.

owners of the property, June 1, 1882, down to May 1, 1885.

The parties have stipulated that there was suffi cient evidence to sustain the verdict of the jury as to damages occurring from June 1, 1882, to May 1, 1885, if plaintiffs were entitled to recover any damages for the same time; and under that stipulation I think plaintiffs were entitled to judgment for the amount of the verdict of the jury.

It is conceded that damages have been caused by the trespass to the amount of the verdict, and it is clear that it is the plaintiffs who are entitled to the rents and income of the property, who have sustained such damages. It was not the testator, for he could not have received the rents of the property that accrued after his death. It was not the plaintiffs as his executors, because they became vested only with the personal property that belonged to the testator at the time of his death. It was to the plaintiffs as devisee of the property, for they were entitled to the rents that had accrued from the demised premises after the death of the testator, and they would have received the amount that the jury has found was the damages sustained, as rent for this property, over and above the amount that they did receive for the property that Gregg occupied; and on such proof I do not see why the defendant would not be liable to the plaintiffs. The law gives to a person injured by a trespass compensation for the injury sustained, and when the wrong is proved, and where it clearly appears that the wrong has injured a party and the amount can be fixed with reasonable certainty, I can see no reason why the court should not award to the injured party a judgment for such an amount. The fact that had it not been for the trespass and the likehood that it would continue, Richard Mortimer could have leased the property including the use of the streets for $10,000 instead

Statement of the Case.

of the property he was able to lease for $6,000, and that after Richard Mortimer's death, plaintiffs, the owners of the property and entitled to the rents, would for these three years have received $4,000 per year more than they did receive, show that plaintiffs' damages were caused by the injury. For that damage defendant is liable. It is the plaintiffs who are damaged because of the wrongful act, and it is the plaintiffs who should be compensated for the wrong.

The rule is now settled in this state that the proper measure of damages for a trespass upon real estate or for the maintenance of a nuisance, is the difference in rental value free from the trespass or nuisance and subject to it. And this rule has been applied although the property was not rented but was occupied by the owner. Francis v. Schoellkopf, 53 N. Y. 154; Michel v. Supervisors, 39 Hun, 47; Wiel v. Steward, 19 Ib. 272. And I can see no reason why it should not be applied in this case as the measure of the plaintiffs' damages, sustained by the wrong committed by the defendant.

The order appealed from should be reversed with $10 costs and disbursements, and the motion to set aside the verdict denied with $10 costs.

FREEDMAN, J., concurred.

CONRAD BASSERMAN, ET AL., RESPONDENTS, v. THE STATEN ISLAND BELT LINE RAILROAD COMPANY, APPELLANTS.

Action to reform a contract and to recover upon the same as reformed— Agent, authority to, and powers of, may be presumed from the facts.

In the case at bar, the plaintiffs' dealings were with one Beasley who assumed to act for the defendant. Beasley wrote the contract in question, and inserted "running yard” in place of “square yard” that had been agreed to by the plaintiffs. That after writing the contract, he read the same to

Opinion of the Court, by INGRAHAM, J.

the plaintiffs and read it as if it contained the words "square yard" instead of "running yard," and the plaintiffs signed it, and performed the work described therein, in the full belief that the contract, as executed, read "square yard" and not "running yard," and they did so because of the fact that "square yard” was what was agreed upon, and Beasley read the contract as if it contained the words "square yard." The evidence sustained these facts, and also the conclusion that Beasley was the agent of the defendant. Held, that whether Beasley made a mistake in inserting "running yard," and read the same to plaintiffs as "square yard," and so induced them to sign it, or did the same intentionally, the company is responsible for his acts in either event; and the decree of the court below reforming the contract was fully justified.

Before SEDGWICK, Ch. J., and INGRAHAM, J.

Decided February 6, 1890.

Appeal from a judgment entered upon the decision of the court at special term.

Richards & Brown, attorneys, and J. Tredwell Richards of counsel, for appellant.

Henry W. Jones, for respondents.

BY THE COURT.-INGRAHAM, J.-An examination of the testimony in this case has satisfied us that there is evidence that the plaintiffs made an offer to Beasley, who assumed to act on behalf of the defendant, to do the work at $1.70 per square yard; that this offer was accepted by Beasley, assuming to act for the company; that Beasley undertook to write out the contract to be executed to carry out such agreement; that in writing out that contract he inserted running yard," in place of "square yard"; that when he read the contract to plaintiff he read it square yard;" that plaintiff signed the contract and performed the work in the belief that the contract, as executed by him, read "square yard"; and that he was induced to sign the contract and go on with the work because of the fact that Beasley read over the contract to him as containing the words "square

66

Opinion of the Court, by INGRAHAM, J.

yard." The plaintiffs who signed this contract expressly so testified, and the contracts and letters are all in Beasley's handwriting. The evidence to contradict this evidence is not at all satisfactory. One witness, who swears to a conversation with Beasley at the time, says repeatedly, that it was one dollar and seventy cents a running "foot" until his attention is called to it, when he corrects his answer so as to say "yard." This is not mentioned as showing that the witness intentionally testified falsely, but to show how easily a witness may be mistaken in testifying to a conversation that took place nearly a year before evidence of such conversation is given. It may be remarked of Mr. Moore's testimony, that he swore positively that the contract was signed by plaintiffs and himself at the same time; that plaintiffs were present when the contract was read by Beasley, who read it "running yard." All this he remembers positively, yet the two letters written by Beasley to the plaintiffs show that he is mistaken.

It is clear that plaintiffs signed the contract on July 3rd, and Mr. Moore so testifies, yet, on July 5th, Beasley writes plaintiffs a letter in which, after speaking of some facilities that plaintiffs would have to do the work, says: "So the officers of the railroad company want you to get to work and do the paving as soon as possible *** The president of the railroad company will have the contract ready to-morrow, when it will be sent to you," and on July 7th, 1888, it was sent to plaintiffs by mail. It is clear from these letters that the contract was not signed by Mr. Moore first, and afterwards by the plaintiffs.

The testimony of Mr. Arents is entirely consistent with plaintiffs' story, and it is evident that at the time he was present the contract was drawn up and signed by plaintiffs. Mr. Arents does not state that