Tobias v. Cohn

1 Trans. App. 346

• Court: New York Court of Appeals
• Decided: January 15, 1867
• Status: Published

Opinion

Porter, J.

The Plaintiff was entitled to the use of the entire garden, as it had been occupied previous to the testator’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. Seely, 19 Wendell, 507).

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

The judgment should be affirmed.

Judge Gboveb also read an opinion for affirmance.

Judgment affirmed.