Opinion of the Court, per PARKER, J.

(Sedgwick on Damages [8th ed.], vol. 3, p. 48; Sutherland on Damages, vol. 3, p. 374; American & English Ency. of Law, vol. 5, p. 36, note 2; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Oak Ridge Coal Co. v. Rogers, 108 Pa. State, 147-152; Dougherty v. Chesnutt, 86 Tenn. 1; Coleman's Appeal, 62 Penn. St. 252; Ross v. Scott, 15 Lea [Tenn.], 479-488; Forsyth v. Wells, 41 Pa. St. 291; Chamberlain v. Collinson, 45 Iowa, 429; Morgan v. Powell, 3 Adol. & Ellis [N. R.], 278; Martin v. Porter, 5 M. & W. 351.)

On the other hand, cases are not wanting where the value of the thing, detached from the soil, would not adequately compensate the owner for the wrong done, and in those cases a recovery is permitted, embracing all the injury resulting to the land.

This is the rule where growing timber is cut or destroyed. Because not yet fully developed, the owner of the freehold is deprived of the advantage which would accrue. to him could the trees remain until fully matured. His damage, therefore, necessarily extends beyond the market value of the trees after separation from the soil, and the difference between the value of the land before and after the injury constitutes the compensation to which he is entitled. (Longfellow v. Quimby, 33 Me. 457; Chipman v. Hibberd, 6 Cal. 162; Wallace v. Goodall, 18 N. H. 439-456; Hayes v. C. M. & S. P. R. Co., 45 Minn. 17-20.)

In Wallace's case (supra), the court said: "The value of young timber, like the value of growing crops, may be but little when separated from the soil. The land stripped of its trees may be valueless. The trees considered as timber may from their youth be valueless, and so the injury done to the plaintiff by the trespass would be but imperfectly compensated, unless he could receive a sum that would be equal to their value to him while standing upon the soil."

The same rule prevails as to shade trees, which, although fully developed, may add a further value to the freehold for ornamental purposes, or in furnishing shade for stock. (Nixon v. Stillwell, 52 Hun, 353, and cases cited supra.)

Opinion of the Court, per PARKER, J.

The current of authority is to the effect that fruit trees and ornamental, or growing trees, are subject to the same rule. (Montgomery v. Locke, 72 Cal. 75; Mitchell v. Billingsley, 17 Ala. 391-393; Wallace v. Goodall, 18 N. H. 439-456; Sedgwick on Damages [8th ed.], vol. 3, § 933.)

It is apparent from the authorities already cited, as well as those following, that in cases of injury to real estate the courts recognize two elements of damage.

1. The value of the tree or other thing taken, after separation from the freehold, if it have any. 2. The damage to the realty, if any, occasioned by the removal. (Ensley v. Mayor, etc., 2 Baxter [Tenn.], 144; Striegel v. Moore, 55 Iowa, 88; Longfellow v. Quimby, 33 Maine, 457; Foote v. Merrill, 54 N. H. 490.)

A party may be content to accept the market value of the thing taken, when he is also entitled to recover for the injury done to the freehold. But if he asserts his right to go beyond the value of the thing taken, or destroyed after severance from the freehold, so as to secure compensation for the damage done to his land because of it, then the measure of damages is the difference in value of the land before and after the injury.

In this case the plaintiff was not satisfied with a recovery based on the value of the trees destroyed, after separation from the realty, of which they formed a part, as indeed he should not have been, as such value was little or nothing, so he sought to obtain the loss occasioned to the land by reason of the destruction of an orchard of fruit-bearing trees, which added largely to its productive value.

This was his right, but the measure of damages in such a case is, as we have observed the difference in value of the land, before and after the injury, and as this rule was not followed but rejected on the trial, and a method of proving damages adopted, not recognized nor permitted by the courts, the judgment should be reversed.

All concur, except BRADLEY, BROWN and LANDON, JJ., dissenting.

Judgment reversed.

Statement of case.

ISRAEL D. GOODMAN, Respondent, v. JACOB COHEN, Appellant.

In an action to recover the alleged purchase-price of certain goods, plaintiff's evidence was to the effect that his stock of goods, which was insured in four companies, having been damaged by fire, appraisers were appointed, one by plaintiff, and one, the defendant, by the companies; that in order to facilitate the adjustment, defendant agreed to and did purchase, for himself, a portion of the damaged goods, in respect to which the appraisers could not agree, at cost price, he agreeing to pay the purchase-price to the companies in proportion to the amount of their respective policies, the amount to be included in the award as if the goods sold were a total loss. In respect to one of the companies, the financial condition of which was doubtful, defendant agreed that if it became insolvent within sixty days, so as not to pay its policy, he would pay its proportion to plaintiff. Held, that the agreement was not one to answer for the debt or default of another, but an agreement to pay the purchase-price of goods sold to himself, either to the company or to plaintiff; the contingency not affecting defendant's liability, which was absolute, but only the method of discharging it; and so that the contract was not within the Statute of Frauds; also, that the contract was not void as against public policy.

(Argued February 4, 1892; decided March 15, 1892.)

APPEAL from judgment of the General Term of the Court of Common Pleas for the city and county of New York, entered upon an order made March 3, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.

This action was brought to recover the sum of $105.26, the alleged purchase-price of certain goods claimed to have been sold by plaintiff to defendant, upon the promise of the latter to pay said amount to the Citizens' Insurance Company of Mobile, provided it should not suspend business or go into liquidation, or become insolvent within sixty days, and if either of those events happened, upon the further promise to pay said sum to the plaintiff.

The complaint alleged the making of said agreement, the delivery of the goods to the defendant thereunder, the insolvency of said insurance company within the period specified, a

Statement of case.

demand of payment and a refusal by defendant to pay. The answer was a general denial.

Further facts are stated in the opinion.

Benno Loewry for appellant. The agreement alleged to have been made by the defendant was absolutely void under the provisions of the Statute of Frauds, because it was not in writing and subscribed by the defendant. (Jones v. Cooper, 1 Cowp. 228; Mallory v. Gillett, 21 N. Y. 412; Roe v. Barker, 82 id. 431; Watson v. Randall, 20 Wend. 201; Burtis v. Thompson, 42 N. Y. 246; Allen v. Scarff, 1 Hilt. 209; Dixon v. Frazee, 1 E. D. Smith, 32; Cahill v. Bigelow, 18 Pick. 369; Cram v. Carville, 5 Hill, 483; Brady v. Sackrider, 1 Sandf. 514; Comyn on Cont. [ed. 1835] 236; Leonard v. Vredenburgh, 8 Johns. 29; Story on Cont. [3d ed.] 953; Smith's Mer. Law, 456; Van Valkenburgh v. L. I. Co., 51 N. Y. 465; Dows v. Swett, 134 Mass. 140.) The defense that this agreement is void under the Statute of Frauds, or for any other reason, is available, and such defense need not be specially pleaded. (Duffy v. O'Donovan, 46 N. Y. 223; Cary v. W. U. T. Co., 15 N. Y. S. R. 204; Porter v. Wormser, 94 N. Y. 431.) The contract sued upon by the plaintiff is also void for lack of consideration. (Folhurst v. Powers, 39 N. Y. S. R. 582; Mallory v. Gillett, 21 N. Y. 412.) The defendant acted as an agent merely for the insurance companies, and this agency being well known to the plaintiff, the defendant cannot be held liable for any act performed or agreement made by him as such agent within the scope of his authority. (Whitford v. Laidler, 94 N. Y. 145; Colvin v. Holbrook, 2 id. 126; Denny v. M. Co., 2 Den. 115.) The agreement testified to by the plaintiff and his witnesses was void as against public policy. (Case v. Carroll, 35 N. Y. 385; Dutton v. Wilbur, 52 id. 312; R. R. I. & S. L. R. R. Co. v. Boody, 56 id. 456; Leonard v. Poole, 114 id. 371; Bell v. Leggett, 7 id. 176; Knowlton v. C. S. Co., 57 id. 518; Arnot v. P. C. Co., 68 id. 558; Foley v. Speir, 100 id. 552; Materne v.

Opinion of the Court, per VANN, J.

Horwitz, 101 id. 469; Keen v. Kent, 4 N. Y. S. R. 431; Goodrich v. Houghton, 29 id. 905.) It is not shown anywhere by the evidence adduced on the part of the plaintiff that the contingencies upon which the defendant is sought to be made liable, to wit, the failure of the Citizens' Insurance Company of Mobile, or its insolvency or suspension of business, have ever occurred; and hence the plaintiff has not proven one of the material allegations of his complaint, and is, therefore, not entitled to a recovery. (E. Bank v. Kaufmann, 93 N. Y. 273; Gates v. McKee, 13 id. 232; People v. Chalmers, 60 id. 158; Kingsbury v. Westfall, 61 id. 356; M. C. Works v. Schad, 38 Hun, 71; 1 Greenl. on Ev. S$ 200, 201; Law v. Merrills, 6 Wend. 268.) The court below erroneously refused to charge that the witnesses Gregg, Gilbert, Hill, Landgraff and Miller were disinterested and unimpeached witnesses. (Moran v. McLarty, 75 N. Y. 25; Penal Code, § 579.)

Arthur Furber for respondent. The contract is an original undertaking on the part of defendant to take and pay for certain goods in a certain manner, and is not within the Statute of Frauds. (Wales v. Stout, 115 N. Y. 638; Mallory v. Gillett, 21 id. 412; Milks v. Rich, 80 id. 269; Smart v. Smart, 98 id. 539.)

VANN, J. Upon the trial it appeared that in January, 1887, the plaintiff was a dealer in men's underwear at No. 80 East Broadway in the city of New York. His stock of goods was insured to the amount of $4,750 in four insurance companies, including the Citizens' of Mobile, and a loss having happened by a fire that occurred on the third of said month, one Sunshine, selected by the plaintiff, and the defendant, selected by the insurance companies, were duly appointed appraisers to estimate the damages, with power to select a third person as umpire if they could not agree. The appraisers met, but after much effort could not unite in making an award. The defendant had been instructed by the representative of all the