Danziger v. Silberthau , 18 N.Y.S. 350 ( 1891 )

McAdam, J.

An action on the ease for waste (if it be voluntary) is a •common remedy, even if an action for breach of covenant will also lie, (Kinlyside v. Thornton, 2 W. Bl. 1111; Marker v. Kenrick, 13 C. B. 188,) but the former action does not lie for permissive waste, for, whatever duties the law casts on the tenant, it raises an implied assumpsit from him to perform, if there be no covenant, and, if there be one, the action should be on that, (Herne v. Bembow, 4 Taunt. 764; Gibson v. Wells, 1 Bos. & P. [N. R.] 290; Martin v. Gilham, 7 Adol. & E. 540; Harnett v. Maitland, 16 Mees. & W. 257.) The action here is on the covenants of the lease, and the injuries or breach complained of, in the nature of permissive waste, the result of neglect ;to repair, rather than of voluntary or tortious conduct on the part of the tenants. The complaint does not charge any tortious act by them, and hence •this cannot be considered an “action on the case,” which is generally understood as meaning an action of tort arising out of the special circumstances of .the case, (1 Chit. Pl. 123,) but an ordinary suit for breach of covenantor duty, in respect to which the statute relating to treble damages has no application. The motion for an order allowing treble damages must be denied, But without costs. •