Tysen v. Poirier & McLane Corp. ( 1941 )

Action for damages for alleged conversion of dirt or soil taken from land on a tract in Staten Island owned by the plaintiffs. Judgment for the defendants unanimously affirmed, with costs. The complaint should have been dismissed at the close of the entire case, or a verdict directed for the defendants. This disposition was required by the language of the lease and the concessions of the plaintiffs in respect of the right of the tenant to remove the hill in question in connection with the grading of the premises for use as an air field. Since the tenant had a right to authorize such removal, the doing of the work by the contractor under an arrangement with the tenant involved no wrongdoing on the part of either the contractor or the railroad defendant. The appeals from the orders entered June 20,1940, are dismissed, without costs, as academic. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ.