Willis v. . McKinnon , 178 N.Y. 451 ( 1904 )

I vote for the affirmance of this judgment. The case ofClason v. Baldwin, (129 N.Y. 183), did not present the question for our decision, which this case, now, presents. There, the plaintiff recovered a verdict, which, in addition to awarding possession of the premises, awarded a sum of money, as the rental value of the premises from the commencement of the action to the day of trial. The General Term reversed, as to the recovery of those damages, and, when the case came to this court, we reinstated the judgment as it had been. The Code sections discussed in the opinion were 1496 and 1497 and it was with reference to them, that it was observed that a recovery of damages for withholding possession could not be had for a time prior to the commencement of the action. That question was not actually raised; the plaintiff in the case claiming, only, that the judgment upon the verdict as rendered was right. The demand in the present action is to recover damages for a time prior to its commencement and, as to the extent of that right, I think that section 1531 of the Code should be construed as applying.

PARKER, Ch. J., O'BRIEN, BARTLETT, VANN and CULLEN, JJ., concur.

Judgment affirmed.