112 N.Y.S. 689 | N.Y. App. Div. | 1908
It was held in Denison v. Ford (10 Daly, 412) that when a tenant is evicted he cannot sue the landlord for tort, so as to change the rule as to the measure of damages, but only for breach of the covenant of quiet enjoyment which, if not expressed, is implied in leases. But in the later case of Snow v. Pulitzer (142 N. Y. 263) the tenant was allowed to pass the covenant by and recover as for a tort. In that way he recovered for the breaking up of his business and the loss of property caused thereby. In the present case the tenants hired a floor in a building which was furnished with steam power for business purposes by the landlord, and’ the lease was in terms not only of such floor, but of the steam power to run the plaintiffs’ business. The complaint alleges that the defendants, the subsequent grantees of the- lessor, “ unlawfully evicted the plaintiffs from the said premises, and the use and enjoyment thereof by wantonly, wilfully and maliciously depriving and cutting off from the plaintiffs’ premises and business all the steam power and live steam absolutely necessary for carrying on the said laundry business”; and it is alleged that the plaintiffs’business was thereby broken up and ruined, and they were unable to get another place equipped to carry on .their business. The case seems to be the same as that of Snow v. Pulitzer, for the wrongful trespass by removing the support of a side wall which caused it to fall, as was the fact in that case,- and the wrongful trespass of disconnecting the shafts in the demised premises from the steam plant in the present case, are the same in principle and cannot be distinguished. Each was a trespass which destroyed the beneficial use for which the premises were leased. The later case of Witherbee v. Meyer (155 N. Y. 446) is not ajsplicable. There the action was, and only could be, for damages for a breach of covenant in the lease that the water power leased with the grist mill was sufficient to run the mill, to its full capacity. It was sufficient to run it, but the complaint was that it was not as great as the lease called for. The rule of damages allowed was the difference between the rental value with the maximum power, covenanted for and the power as it was. But suppose the landlord had wrongfully torn down the dam and deprived the tenant of all power ? The case would then have been ■ the same as the present one and that of Snow v. Pulitzer. More-
The judgment should be reversed.
Woodward, Jenks and Rich, JJ., concurred; Hooker, J., , dissented.
Judgment reversed and new trial granted, costs to abide the event.
