majority">• Hatch, J.:

The complaint avers that the plaintiffs are the owners of an equal undivided nine-sixteenths part of certain premises, consisting of about ninety-six acres of land lying in the town of Clai’kstown, in the county of Rockland; that the lands are of a mountainous character adapted to the quarrying of trap rock, which is manufactured into crushed stone; that between March 1,1892, and about December 1, 1892, the defendant was the sole occupant in possession of the premises, and quarried and manufactured into crushed stone large quantities of trap rock, which he carried away and sold, realizing therefrom large profits, which he has retained to his own use and refuse's to' make any account of to the plaintiffs; and that the plaintiffs have received no rents, issues or profits from the premises or from the quarry during said period. The plaintiffs ask judgment 'inter alia for their proportion of the rents, issues and profits, and for an accounting to determine the same. Upon the trial the averments of the complaint were sustained by the proof to the extent of showing that the defendant had opened a quarry upon the property and had removed -therefrom large quantities of trap rock, which he crushed and sold, receiving therefor a considerable sum of .money. It also appeared without dispute that the quarry occupied but a small portion of the property, and that the defendant did not exclude the plaintiffs from the enjoyment of any portion or part of the premises, and the same were at all times open to them and-available for occupancy. There ran through the whole *131property a vein of trap rock, and it exists in practically inexhaustible quantities. The only purpose for which the premises can be used to advantage is for quarrying this rock.

The court upon the trial held that the defendant was liable to the plaintiffs for a proportionate amount of the rock removed, less the cost and expenses of removal, and ordered a reference to take an account. Upon the coming in of this report the court modified the same, and, as modified, confirmed it, and judgment thereon was entered in favor of the plaintiff for the sum of $8,972.20.

Upon these facts it is contended that no liability is established against the defendants. The ground of excuse sought to be invoked is that a tenant in common is not liable for mesne. profits to his co-tenants for the ordinary use and occupation of the common premises,, in the absence of an agreement to pay, or for the ouster or exclusion of the co-tenant, unless there has been the commission of waste. Such undoubtedly is the general rule, and as applied to the ordinary use and occupation of lands the law is well settled and is supported by a long line of decisions. But this rule does not apply to a case where the occupant removes a part of the freehold itself. The distinction is made to rest upon the ground that the act of removal diminishes and takes away the common property, and, therefore, liability is created to account to the co-tenant for his damage and the profits of the transaction. (McCabe v. McCabe, 18 Hun, 153.) The law of this case met the approval of the General Term in this department in Muldowney v. Morris & Essex R. R. Co. (42 id. 444) and has been cited with approval elsewhere. (Abbey v. Wheeler, 85 id. 226.) In Rich v. Rich (50 id. 199) the question was not involved. The court in that case refused to adopt the law upon the subject óf exclusive occupancy by one co-tenant, as announced in Scott v. Guernsey (48 N. Y. 106), which seems to have come in conflict with established law. Although the McCabecase was cited in the Rich case, its doctrine was in no respect criticized, and its facts were, essentially different. We think the McCabecase was well decided, and that it expresses the true rule, which is well sustained both in principle and by authority.

The defendant relies upon the case of Le Barron v. Babcock (122 N. Y. 153). There was nothing in this case to take it out of the Usual rule applicable to the ordinary use and occupation of the *132common premises by one co-tenant-, and the court in its decision was not called upon to, and did no more than apply.such rule to the facts-■ ■of that case. It is not in conflict with the rule which is applicable here. Ro' force can he given to the contention that there was no-ouster of the co-tenants, and that they possessed the right to ren&vethe rock if they saw fit. Liability does not.depend upon such fact,, nor is it affected by reason of its existence. Liability is predicated upon the act of the defendant in. removing the stone, it constituting a part of the freehold. The plaintiffs were entitled to have it remain where it was, and if the defendant saw fit to take it away he must, answer to his co-owner for its value to the extent of their interest therein. Ror can the defendant avail himself of the fact that the rock is practically inexhaustible, or that his acts added value to the property as a whole. This conferred upon him no right of removal. The fact remained that the rock removed diminished the quantity,, and was of value, and it is these elements that create the liability.

The claim for personal service, although rejected by the referee, was allowed by the court, and it seems to have acted upon the only evidence furnishing any substantial ground for such allowance. The lump sum of $1,000 a month for service and expenses could not he allowed upon any basis furnished by the evidence, as the defendant was unable to say how much was for expense and how much for service; the court was, therefore, compelled to rely upon the only fairly certain rule of five per cent, which was testified to be the value for selling. We are not to be understood as committing ourselves to the doctrine that allowance could legally be made for personal service rendered by the defendant. There is no doubt of its propriety in this case if the law sanctions it, upon which subject we express no opinion. It is sufficient for the present purpose to say that a sum has been allowed and plaintiffs do not complain; it should, therefore, stand. More we cannot add, under the proof, if we possessed the power.

The defendant has been charged with the sum of SljBSB.IS, being the value of the stone which he left upon the premises when he was served with an injunction requiring him to cease operations unless he gave a bond to his co-tenant. This he declined to do, and ceased to quarry stone or sell the same from that time. The item represents the stone quarried and -upon the premises at the time, *133uncrushed. Subsequently the defendant sold the personal property in and about the quarry to one Guión, who, it is claimed, bought the same for the benefit of the plaintiffs. In fact the property was transferred by Guión to the plaintiffs, and they entered into possession of the property and the quarry, and crushed and sold the stone with which the defendant is charged. The defendant testified that the stone furnished no part of the consideration for the purchase price paid him by Guión ; that the whole was represented by the articles of personal property and the machinery used in crushing and quarrying the rock, and that he received nothing for the quarried rock. The bill of sale to Guión mentioned the uncrushed rock, but it did not appear that any price was affixed thereto, nor did it appear that the plaintiffs paid anything on account thereof when they received their bill of sale from Guión, or that this stone entered into the consideration paid in either transaction. If it was not paid for either by Guión or the plaintiffs, then the defendant could not be charged therefor, as the plaintiffs had the full benefit thereof. The referee held that the bill of - sale concluded the defendant, and he rejected proof offered to show what the consideration was for the rock therein mentioned, or what the transaction was relating thereto. We think this proof was admissible and should have been received. It bore upon the consideration received therefor by the defendant. The bill of sale was silent upon the subject of consideration, and it was •competent to show, what the agreement was in that respect as well as to show what the arrangement was in connection with the rock. (Briggs v. Groves, 30 N. Y. St. Repr. 953; Claflin v. Taussig, 7 Hun, 223; Bean v. Carleton, 51 id. 318.) Ho liability attached to the defendant for the mere severance of the rock from .the freehold, unless -the freehold was damaged thereby. There could be no more than nominal damages for such act under the circumstances of this case. The defendant is only liable to account for the stone which he sold at its fair value, and if- he received nothing for this stone, and the plaintiffs acquired it in connection with the machinery for quarrying and crushing, without paying therefor, then there is no basis of liability, against the defendant. It is quite evident' that this rock was of little value, except in connection with the facilities for preparing it for market, and it might well be that it was considered o-f no value by both parties in the transaction *134which, transferred title to the personal property, except as it existed as an aid to the sale. Under such circumstances we think the defendant became entitled to show how it was-considered in the transfer to . Guión, and that the plaintiffs were obligated to show that the defendant received value therefor, and that value for it was considered in their transaction, aside from the transfer of the other property. This item upon the proof was improperly allowed as .a charge against the defendant.

It follows that the judgment and order of confirmation should be reversed, and the case sent back to the referee for a further hearing respecting this item, unless the plaintiffs within twenty days stipulate to reduce the judgment by the amount of $1,638.75 and interest thereon, and in the event such stipulation is given, then the interlocutory judgment,and the judgment entered upon the order modifying and confirming the report of the referee as modified is affirmed, without costs in this court to either party.

All concurred, except Bartlett, J., absent.

Judgment and order reversed, and case remitted to the referee for further hearing, unless the plaintiff within twenty days stipulates to reduce the judgment by the amount of $1,638.75 and interest thereon, in which event the interlocutory judgment and the judgment entered upon the order as reduced are affirmed, without costs in this court, to either party.

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