Danziger v. Silberthau — 18 N.Y.S. 350

Majority

p. 350

Danziger v. Silberthau et al.

(Superior Court of New York City,

Special Term.

May 7, 1891.)

Headnote

Waste—Treble Damages.

In an action by a lessor against Ms tenant for waste, which is merely the result ■of neglect to repair, in violation of the covenants of the lease, and the complaint does, not charge any voluntary or tortious acts on the part of the tenant, treble damages cannot be recovered.

Action by Max Danziger against Max Silberthau and others for waste. 'The lease from plaintiff to defendants stipulated that the leased premises ¡were to be returned at the end of the term in as good order as when the lease was given, usual wear and tear excepted, but that glass was broken, railings ■destroyed, and plastering and plumbing injured and destroyed to the amount of $1,408.54. Verdict was rendered for plaintiff, and he now moves for a judgment for treble damages.

Denied.

Lewis Sanders, for plaintiff. Lyman Rindshopf, for defendants.

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. •