Drucker v. Simon

4 Daly 53

Opinion

By the Court.

*—Joseph F. Daly, J.

—The refusal of the landlord to give the plaintiff possession, after demand, of the part of the demised premises withheld originally by consent, justified the plaintiff in removing, and relieved him from the payment of, rent after the removal. The relations of the parties and the rights pf the tenant, were not altered by his demanding rent from his landlord for the portion of the house withheld. The tenant had no right to rent or any compensation for use and occupation from his own landlord because the latter withheld any part of the premises. The landlord did not agree to pay any rent, so no complication of their relations ensued, and the tenant’s right to remove was unquestionable. The action was, therefore, well brought for damages for the eviction.

But the Justice erred in his rulings on the admission and exclusion of testimony as to the damage sustained. One measure of damages was the difference between the value of the premises for the balance of the term after the removal, and the rent reserved for the same period. The plaintiff was his own and only witness as to value. His testimony was offered as that of a real estate agent and expert familiar with values. It was error to disallow the defendant’s question as to the number of houses the plaintiff had let. He said'he had had charge of the letting of 60 or 70 houses. The defendant was entitled to learn where they were, what they were, and what rent they were let for, in order to ascertain the correctness of plaintiff’s estimate of the rental value of No. 404 East 50th street. It would have been error to exclude it on a trial before a jury, • and it was as much error to do so before the Justice.

It is doubtful whether the plaintiff was entitled to the difference in rent he paid for the demised premises, and thos'e he removed to, or that'any evidence on that head should have been allowed. If it were proper at all, the question put to plaintiff, which "the justice allowed against defendant’s objection, viz.: “ What rent he paid for the place he moved to after he left the demised premises ? ” was clearly improper, without evidence as to the situation, convenience, and equality of accommodation of the premises removed to, as compared with those he left, and without evidence (as the eviction was not forcible nor sudden) that he made diligent effort to get suitable premises of as good class, at the samé rent, and failed. It is doubtful, in any event, if he could recover both the difference in value of the premises he removed from, and the difference in rent of those he removed to. My view is, that the former is the compensation intended by law to protect him against the extra expense incurred by the latter. In every aspect of the . case, the evidence so offered was improper. The cases to which we are referred (Chatterton v. Fox, 5 Duer, 64) are not positive.

The expense of removal was a proper item of damage under certain circumstances.

The judgment should be reversed.

Judgment reversed.

Present, Daly, Ch. J, Larremobe and J. F. Daly, JJ.