Ludlow v. Village of Yonkers

43 Barb. 493, 1865 N.Y. App. Div. LEXIS 25

• Court: New York Supreme Court
• Decided: February 8, 1865
• Status: Published

Opinion

By the Court,

J. F. Barnard, J.

From a careful examination I think this judgment can not be sustained. The damages should be only the actual injury sustained by the plaintiff, with interest from the time of the injury. If rent is recoverable, it would only be for such time as was necessary to repair the premises and restore them to their usefulness. The plaintiff can repair at his pleasure. He has not yet repaired, and has recovered rent from 1861 down to the trial, and perhaps to the date of the referee’s report in 1864. There is no proof on which this rent can be recovered. The plaintiff can not, by neglect to repair, charge the defendant for rent to the extent of time permitted by the statute of limitations. It is not therefore -necessary to discuss the questions as to the liability of the defendant, under the evidence. I am inclined to think that the defendant was bound to do skillfully what it undertook to do even voluntarily. But assuming the liability, there must be a new trial at the circuit, costs to abide the event. Hew trial granted.

[Kings General Term, February 8, 1865.

Hogeboom, Lott and J. F. Barnard, Justices.]