Opinion of the Court, per RAPALLO, J. of the barges, testified that the sloop appeared to him to be coming close to the barges, and that he took measures to provide against her colliding with the barges, it is not shown that the steamer did anything whatever, for the purpose of keeping out of the way, until the vessels were within twenty-five or thirty yards of each other, when she rang to stop her engine. The man at the wheel testified, that the steamer was then on the same course which she had been keeping for half an hour previously. It is evident that if there was no wind, the sloop could not have moved materially out of the course in which she was drifting, and that a change should, therefore, have been made in the course of the steamer, so as to clear her. The defence must, therefore, rest upon the allegation of contributory negligence on the part of the sloop. As we have already stated, we do not deem the evidence on the part of the defence, in respect to the wind and the movements of the sloop, so preponderating as to justify us in holding that the referee should have found that the sloop had a wind, and wrongfully or negligently changed her course, and that his finding to the contrary was against the weight of the evidence. But it is claimed on the part of the defendants, that conceding that the sloop was drifting with the tide, and not under the control of her helm, it was negligent to suffer her to proceed in that unmanageable condition, and it was her duty to come to an anchor. This position is sustained, by the opinion of the majority of the court below, and is stated as the ground upon which the new trial was granted. We cannot concur in this view. It is not sustained by authority; and the adoption of such a rule would materially, and it seems to us, unnecessarily embarrass sailing vessels, especially in the navigation of rivers. A sailing vessel should, unless special circumstances exist rendering it dangerous, be entitled to take advantage of a favorable tide as well as wind; and in a temporary calm, or when the wind is baffling, to keep in condition, to take advantage of any breeze which may spring up. She should not be compelled, when a regular Opinion of the Court, per RAPALLO, J. current is carrying her toward her destination, to come to an anchor or lower her sails every time the wind slackens or fails. If the current should be drifting her toward a stationary object, or one unable to keep out of her way, no doubt it would be her duty to anchor or take other measures to avoid collision. But in the navigation of a river, a sailing vessel owes no such duty to an approaching steamer to which she is visible, and which has motive power and sufficient room to enable her to keep clear. The steamer should judge of the course of the current of the river she is engaged in navigating, and by that means calculate the course of the drifting vessel and avoid it. (Pearce v. Page, 24 How. U. S., 228; Newton v. Stebbins, 10 How. U. S., 586; Crockett v. Newton, 18 How. U. S., 581; Laune v. Tourne, 9 La., O. S., 428; The Island City, 5 Blatchford, 264; Fretz v. Bull, 12 How. U. S., 466; The Fashion v. Ward, 6 McLean, 152.) A steam propeller with a tow, stands upon the same footing in respect to the duty of avoiding sailing vessels, as any other steamer. (N. Y. and Balt. Trans. Co. v. Phil. and Sav. St. Navigation Co., 22 Howard U. S., 461.) No special circumstances were shown in this case, which rendered it improper for the Westchester to take advantage of the favorable current to make progress on her voyage, or to keep her sails up to catch the occasional breeze. The river was upward of two miles in width; the channel upwards of one mile in width, and almost entirely clear of vessels. And although it was night there was clear starlight, and the sloop had her lights set, in a manner to indicate that she was under way. It does not appear that there was any deficiency in her equipment. Her master and crew were on deck; she had a proper lookout, and the speed of the current did not exceed two miles per hour. At the rate at which both vessels were progressing, those navigating the steamer could with proper attention, have seen the sloop approaching for a considerable time before meeting her, and made their calculations as to her course, based upon the condition of wind and tide. There Opinion of the Court, per RAPALLO, J. was ample room, and the sloop had a right to expect that the steamer would pass her at a safe distance. Assuming therefore, as we must, that the referee, in effect, determined that the collision occurred in the manner claimed by the plaintiff, and such finding not being against the weight of evidence, our conclusion is, that contributory negligence on the part of the plaintiff was not shown, and that the finding of the referee on that branch of the case should be sustained. We have examined the various exceptions to rulings on questions of evidence, and do not find in them any sufficient ground for reversing the judgment. The only remaining questions raised, relate to the damages. By the stipulation of the parties, but two items were left to be passed upon by the referee, viz., the value of the sloop, and interest. There was sufficient evidence to sustain his finding, as to the value of the vessel, and we think that interest on the value of the property lost was properly allowed. In cases of trover, replevin and trespass, interest on the value of property unlawfully taken, or converted, is allowed by way of damages, for the purpose of complete indemnity of the party injured, and it is difficult to see why, on the same principle, interest on the value of property lost or destroyed, by the wrongful or negligent act of another, may not be included in the damages. (Propeller Mary Vaughan v. Steamboat Telegraph, 2 Benedict, 47; Sedgwick on Damages, p. 385, and cases cited; Walrath v. Redfield, 18 N. Y., 457.) The order appealed from should be reversed, and the judgment on the report of the referee affirmed with costs. Ch. J., GROVER and PECKHAM, JJ., concur; ALLEN and FOLGER, JJ., not voting. Statement of case. THE HOME LIFE INSURANCE COMPANY OF BROOKLYN, Appellant, v. SYLVESTER J. SHERMAN, Respondent. Where a tenant yields the possession of the demised premises, in pursuance, or in consequence of a judgment for the recovery of possession, to the person adjudged to be the rightful owner of the paramount title, it is an eviction, and he is discharged from the payment of rent. H., the owner of certain premises in New York, leased them to D., the lease contained a covenant, that the lessee should not use or allow any part of the demised premises, to be used for any business deemed by fire insurance companies extra hazardous. D. sublet a portion to the plaintiff, who sublet to defendant. All the leases contained similar covenants. Defendant commenced a business prohibited by the covenants in the leases. H. brought ejectment against D. and his sub-tenants, and obtained judgment. Defendant thereupon abandoned the premises, leaving the key with plaintiff. Held, that this was in effect a surrender to H., and an eviction. The rule that defendant was discharged thereby from the payment of rent was not changed by the fact, that the judgment in the ejectment suit was obtained, in consequence of defendant's violation of the covenants in his lease. Plaintiff's remedy is by action for breach of those covenants. (Argued September 7th, 1871; decided November 10th, 1871.) APPEAL from an order of the General Term of the second judicial department, reversing a judgment in favor of plaintiff entered in Kings county upon the report of a referee, and ordering a new trial at the circuit. Samuel V. Hoffman, owner of premises 258, 259 and 260 Broadway, New York city, leased the same to Daniel Devlin for five years, from May 1st, 1864. This lease contained a covenant that the lessee "should not use the premises, or any part thereof, or allow them to be used, for any business which shall be deemed extra hazardous by the fire insurance companies of the city of New York, whereby the insurance will be affected." Devlin & Co., February 7, 1865, sub-let a portion of the premises to the plaintiff with a similar covenant, and on April 12, 1866, plaintiff sub-let the two upper lofts to defendant for three years from May 1st, 1866, with like covenants, for the sum of $4,500 per annum, payable quar Statement of case. terly. Defendant took possession of said lofts May 1, 1866, and immediately thereafter introduced the manufacturing of hoop skirts. In the latter part of May, 1866, Hoffman objected to the hoop skirt business, as a violation of the covenants in his lease. And efforts were made by plaintiff, to have this part of defendant's business removed from the building, but defendant refused to do so. Negotiations having failed, Hoffman brought ejectment against Devlin and all sub-tenants in October, 1866, alleging that the hoop skirt business of Sherman was a violation of his lease. Sherman answered. The action was referred, and judgment for plaintiff entered June 4, 1867. No execution ever issued upon said judgment, and Hoffman thereafter collected his rents from Devlin & Co. under his lease to them as before, and Devlin & Co. collected rents from plaintiff under their lease the same as before the judgment. The defendant Sherman abandoned the premises leased to him in June, 1867, leaving the key with plaintiff. This action is for the quarter's rent due August 1st, 1867. The action was referred, and upon the referee's report judgment was entered in favor of the plaintiff for $1,599.46, October 31st, 1868. A. B. Capwell, for appellant. There was no eviction. (Vernam v. Smith, 15 N. Y., 332; Kerr v. Shaw, 13 Johns., 236; Waldron v. McCarty, 3 Johns., 464; Kortz v. Carpenter, 5 Johns., 120; Fowler v. Paling, 6 Barb., 171; Webb v. Alexander, 7 Wend., 283; Whitbeck v. Cook, 15 Johns., 490; Hunt v. Amidon, 4 Hill, 345; Chamberlain v. Graves, 2 Hill, 504.) Geo. G. Reynolds, for respondent. Defendant removed from the premises by compulsion of law. (The U. Co. v. Inhabitants of A., 17 Mass., 460; Hanson v. Buckner's Executors, 4 Dana, 251, 254; Preston v. Borton, 12 Pick., 7.) The judgment in ejectment was an eviction by title paramount and discharged liability for rent. (Dyott v. Pendle |