Tobey v. Webster , 3 Johns. 468 ( 1808 )

Yates, J.

delivered the opinion of the court. An action of trespass may be maintained by a landlord against a tenant at will, for waste, because the injury determines the estate, and the possession considered as thereby actually in the landlord. The defendant here is an under tenant of a tenant for years ; and the alleged trespass was committed before the expiration of the term, j The instrument by which the defendant possessed the premises, made him a tenant at the will of the lessee for years, and not at the will of the original lessor ; |and if the lessee for years, his agents, or sub-tenants, did an injury to the freehold, the lessor might have his remedy against him or the person in default, in another form of action^ The assignment or surrender of this lease to the original lessor, before the expiration of the term, does not give him a right to sustain this action.’ I should rather suppose that, by this assignment, having accepted'the premises in the state and condition they were at the time of such surrender, he. has waived all claim for injuries previously done to the freehold. But it is contended that this assignment and re-entry restores the possession ab initio, and gives him a right of action. This doctrine only applies in a case of disseisins The re-entry in such case reduces the possession from the time of the first disseisin, and an action of trespass may be sustained j but here the possession of the defendant was lawful, founded on the original lease, and no disseisin is pretended. I cannot, therefore, distinguish this case from that of Campbell v. Arnold, where the court considered the rule as established, that there must be a possession in fact of the real property* to which the injury was done, in order to entitle the party to an action of trespass quare clausum fregit.

The Court are, therefore* of opinion* that the verdict ought to be set aside, and that a judgment of nonsuit be entered;

Van Ness, J; having formerly been concerned as counsel in the cause, declined giving any opinion;

Judgment of nonsuit;