Opinion
May Term, 1897.
J.W. Atkinson, for the appellant.
Thomas O'Connor, for the respondent.
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.