Burkhard v. Morris

Full title: NELLIE BURKHARD, Respondent, v . JENNIE MORRIS, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 3, 1923

206 App. Div. 366 (N.Y. App. Div. 1923)

Opinion

October 3, 1923.

McIntyre, Wilkie Swartz [ Bernard Swartz of counsel], for the appellant.

William J. Bullion, for the respondent.

PER CURIAM:

The action is by a lessee against a lessor for damages for failure to deliver possession of the leased premises.

The general rule of damages in such a case is the difference between the rent reserved in the lease and the rental value of the premises, the latter to be fixed by one qualified to testify as an expert upon rental values of premises of the kind leased in that general vicinity. ( Dodds v. Hakes, 114 N.Y. 260; Berkowitz v. Iorizzo, 106 Misc. Rep. 489, 493.) Special damages which are the natural but not the necessary consequences of the breach are also recoverable if properly alleged and shown. ( Friedland v. Myers, 139 N.Y. 432; Williamson v. Stevens, 84 App. Div. 518.) The expense of moving amounting to ninety dollars and the deposit of twenty-five dollars were the only items of damage proved within the foregoing rules. The only interest which plaintiff had in the premises surrendered by her after she had secured the lease in question was as tenant from month to month. There was no proof of any facts which would be a basis for the loss of profits as special damages. ( Giles v. O'Toole, 4 Barb. 261.)

The judgment should be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event, unless the respondent stipulates within ten days after service of the order hereon to reduce the verdict to $115 and interest; in which case the judgment as modified should be affirmed, without costs.

All concur.

Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide event, unless the plaintiff shall within ten days stipulate to reduce the verdict, as of the date of the rendition thereof, to the sum of $115, with interest thereon from February 24, 1923, in which event the judgment is modified accordingly, and as so modified is, together with the order, affirmed, without costs of this appeal to either party.