Joseph Agate, Appellant, v. Henry Morrison, Survivor, etc., Respondent

Joseph Agate, Appellant, v. Henry Morrison, Survivor, etc., Respondent. (Argued March 11, 1881; decided March 25, 1881.) This was an action by a lessor against his lessees to recover damages for alleged injuries to the demised premises. The defendants made extensive alterations, removing partitions, doors, etc. The defendants justified under a clause in the lease giving the lessee “the right to make any inside alterations to said premises as he* may think proper, provided the same do not injure the premises.” The case is imported on a former appeal in 57 N. T. 604. Upon the second trial certain questions were submitted to the jury as follows: “Did the removal of the partitions and doors do substantial injury to the premises ? ” “Did their removal diminish the pecuniary value of the building % ” “ Was their removal a wanton and capricious act % ” “ Was it made with reasonable care, in good faith, with the expectations on the part of defendants and for the purpose of making the lease more profitable ? ” These questions were objected to by plaintiff’s counsel as being incompetent and immaterial to the issue. The answers were all in favor of defendants. Held, that the action of the trial court was proper and was in conformity to the views of the appellate court upon the former appeal. Plaintiff’s counsel claimed a right to recover for the value of the materials removed and, as alleged, converted by defendant. No evidence was offered in reference thereto until after the case was in the hands of the defendant. Held, that it was in the discretion of the court whether or not to admit it at that time, and that excluding it was no error. C. Bainbridge Smith for appellant. Robert H. Griffin for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance. All concur, except Sapallo, J., absent. Judgment affirmed.