1 Sweeny 528 | The Superior Court of New York City | 1869
By the Court:
In the case of Gardner v. Keteltas (3 Hill, 330), the Supreme Court held that, in the absence of an express covenant so to do, a lessor was not bound to put his lessee into the actual possession of the demised premises, as against a wrongful holder thereof. And this because the usual covenant for quiet
The receipt and agreement of August 8, 1865, was not a lease either present or future. It was an agreement to give a lease only (Jackson v. Delacroix, 2 Wend., 433). It did not clothe the plaintiff with the title to or right of possession of the demised premises, even as against the defendant himself, much'less as to third persons. It was-an executory contract, whereby the plaintiff could compel the execution and delivery of a ' leasé on the day therein named ; but. until the delivery of such lease the plaintiff was without lawful right or remedy tó oust 'the previous tenant, who was wrongfully holding over (Norman v. Wells, 17 Wend., 136). It is true the printed case contains a stipulation signed by. the counsel of the respective parties, whereby it is agreed that under the agreement of August 8, 1865, the plaintiff “was entitled to the possession of the demised premises on the 1st day of September, 1866,” but that is not a stipulation as to any fact in the case. It is at best but an illegal conclusion. If, as is probable, the plaintiff g counsel, by stipulating that his client was “ entitled to the possession,” &c., under the - agreement of August, 1865, intended only to assert in general terms his rights and remedies ill
By this agreement the defendant obligated himself to execute and deliver to the plaintiff on the 1st day of September, 1866, a lease of the premises in question for three years'—such a lease as would enable the plaintiff to obtain and hold the possession of the premises for that period of time against all others. The defendant, although duly requested so to do, refused or neglected to deliver such lease for a number of days. This was a breach of his contract, and for such breach the plaintiff was entitled to recover such actual damage as he had sustained in consequence. He seeks in his complaint to recover for loss of profits which he might have made in the business he proposed to conduct in the premises. But the justice at circuit properly excluded evidence of or right to recover such damages as too remote and contingent. The plaintiff, however, was clearly entitled to recover for the rent he paid for the use of the premises during that time. Had the defendant kept his contract and delivered the lease on the day named in the agreement of August, 1865, then, within the ruling of Gardner v. Keteltas, supra, plaintiff would have had his remedy and been obliged to look to the wrongful hold-over tenant, and could have recovered of him not only the possession, but damages, for the withholding; but without his lease he had no rights in the premises as against the tenant holding over; and defendant, therefore, is clearly liable to respond to the plaintiff for such legal damages as he has sustained in the premises. It
Judgment affirmed, with posts.