Tobias v. . Cohn

36 N.Y. 363

Opinion

Porter, J.

The plaintiff was entitled" to the use of the entire garden,, as it had been occupied previous to the testa-, tor’s death. She had a life interest in the premises; and, though the declared purpose of the gift was to provide her with a residence, there was no limitation of the estate to a mere right of personal occupancy. She was at liberty to rent the premises ;■ but, when she did so, she parted with her possessory interest during the term of the lease. The court was right, therefore, in dismissing the complaint. The action was for an injury to the possession, which was in the tenant, and not in the plaintiff. (Holmes v. Seeley, 19 Wend., 507.) .

There could not be a recovery for injury to the inheritance, as there were no allegations in the complaint, either of thé destruction of the fruit trees and shrubbery, or of the reversionary interest of the plaintiff in the premises.

The judgment should be affirmed.

Grover, J., also read an opinion for affirmance.

Judgment affirmed.