Livingston v. Robb

61 Misc. 81, 113 N.Y.S. 137

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1908
• Status: Published

Opinion

MacLean, J.

The plaintiff brought this action to recover damages alleged to have been sustained in consequence of a breach by the defendants of the covenant to surrender the premises in good condition at the termination of their lease. Having removed the defendants by summary proceedings, the right to recover for a breach of the covenant remained in force. Vernon v. Brown, 40 App. Div. 204. In that case rental value and cost of restoration were allowed as damages, as herein may be allowed the rental value and cost of removal of property belonging to the defendants, but ■ not the sums allowed by the court below, consisting of counsel fees, marshal’s fees, charges for taking out the precept, service of same and putting the summary proceedings on the calendar, as not properly contemplated within the result of the breach of the covenant sued on. The judgment should, therefore, be reduced by the sum of thirty-eight dollars.and fifty cents and, as thus modified, affirmed, without costs of this appeal to either party.

Judgment modified by being reduced by the sum of thirty-eight and fifty cents, and, as thus-modified, affirmed, without costs of this appeal to either party.

Gildersleeve and Seabury, JJ., concur.

Judgment modified and as thus modified affirmed, without costs of this appeal to either party.