John L. Harris, Respondent, v. David Gregg, as Committee, etc., of Amasa N. Gregg, an Incompetent Person, Appellant

John L. Harris, Respondent, v. David Gregg, as Committee, etc., of Amasa N. Gregg, an Incompetent Person, Appellant. Conversion as between tenants in common of growing crops. Where a tenant who agrees to furnish half the seed, do all the work, live off of the undivided products of the farm, aiid divide the residue thereof with the owner of the land, after planting certain grain in the fall, leaves the land, and when he claims the .next summer the fight to harvest grain thus planted', is for-"' . . bidden to do so by-the owner, who, however, concedes that the parties were • tenants in common of the crops, the .owner is liable to the tenant for the latter’s share of. the crops. • . . Appeal .by the defendant, David Gregg,' as committee, etc., of Amasa R. Gregg, an incompetent' person, from á judgment of the . .Saratoga County Court in favor óf the plaintiff,- entered in the office of the clerk of the county of Saratoga on the 20th day of Rovember, 1896, upon the" verdict of a jury, and also from an order entered.in said clerk’s office on the 30th day of Rovember, 1896, denying the defendant’s motion for a new trial, made upon the minutes. ;' ■ - - . ' The plaintiff worked the farm of Amasa R. Gregg' from. the spring of 1883 until the spriiig-of 1892 under-an oral agreement' that each party was to furnish, half the seed, plaintiff to do all the. work, live off the undivided proceeds, divide equally the surplus, each to pay half the taxes. Ro time was stated as to the length of .'the 'term! In the fall of 1891 the plaintiff, intending to remain upon the farm another year, prepared ' the ground and sowed twenty-one acres to rye and to timothy grass, each party furnishing onedialf of the seed. The following spring the plaintiff, without consulting Gregg, removed from the farm. In July following, when the rye was about ready for harvest, the jffaintiff offered to harvest the crop, but Gregg refused to permit. him to do so, but harvested it himself and kept and disposed of the entire crop. Upon the trial, these facts having been shown, the plaintiff offered to prove that it was the custom of the country for the outgoing tenant working a farm upon shares to return and harvest the' crop of rye or wheat which he had sown the previous fall and take his share of the crop. Objection being made by the defendant to the evidence, he conceded that the parties were tenants in common of the crop, and thereupon the offer was withdrawn. The ■ plaintiff had a verdict for the value of one-half of the crop after deducting the expense of harvesting it. J. W. Atkinson, for the appellant. Thomas O' Connor, for the respondent. [MAJORITY — Landok, J.:] Landok, J.: It was competent for the plaintiff to show, in the absence of any agreement to the contrary, the custom of the country as to the outgoing crop. (Reeder v. Sayre, 70 N. Y. 180.) The defendant, by conceding that the parties were tenants in common of the crop, conceded in'effect all the plaintiff could obtain from such evidence and more; for, if the .plaintiff had, in violation of the contract (which is doubtful, Unglish v. Marvin, 55 Hun, 45), left the farm, he had thereby lost his right to the emblements. (4 Kent’s Comm. 73; Samson v. Rose, 65 N. Y. 411.) But, being tenants in common of the crop, Gregg, by converting the whole of it to his own use, became liable to the plaintiff for the value of the plaintiff’s share. (Osborn v. Schenck, 83 N. Y. 201.) The judgment and order should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.