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The lunacy of Strasburger did not discharge or affect his covenants in the leases to the appellants. (Matter of Otis,101 N.Y. 580.) His estate is liable for whatever damages the appellants have sustained because of the breach of the covenant for quiet enjoyment in the leases given to them by him. To the extent of such damages, they are general creditors and entitled to have their claim ascertained in order to be paid in the due course of administration. (Id.) But the question is, what is the measure of their damages? The appellants claim that it is the value of the unexpired term,
less the rents reserved. This would be so if the breach of the covenants for quiet enjoyment resulted from the fault of Strasburger. (Mack v. Patchin, 42 N.Y. 167.) But the general rule is, in the absence of fault in the lessor, that the lessee can recover only such rent as he has advanced, and such mesne profits as he is liable to pay over. (Id.; see Walton v.Meeks, 120 N.Y. 79.) The committee has already repaid the appellants the rent advanced by them upon the portion of the quarter beyond their actual occupancy, and there were no mesne profits which they were liable to pay over. If Strasburger had been sane and had refused to pay the rent to his superior landlord, and thus had refused to protect his covenants with the appellants, the damages for the breach would have been measurable by the rule first stated. But he became a lunatic and the breach followed from his misfortune, not his fault.
It is urged that his committee ought to have paid the rent, and thus have protected the lunatic's covenants. But why should the committee pay it? The estate was insolvent, and it does not appear that it was for its interest to make the payment. It might be better for the estate to incur whatever damages might result from the breach of the covenants than to expend the money necessary to protect them. The appellants could themselves have protected their possession by paying the superior landlord the rent due him. (Peck v. Ingersoll, 7 N.Y. 528.) The committee takes no title to the lunatic's estate; he is a mere bailiff to take care of it and administer it under the direction of the court. (Matter of Otis, supra; People ex rel. Smith v.Commissioners of Taxes, 100 N.Y. 215.) He owed no duty to the appellants of a specific performance of the lunatic's covenants, and when the estate became chargeable with damages consequent upon their breach, the estate was also entitled to the protection which the law extends to innocence in measuring such damages. Indeed, the burden was upon the appellants to prove the facts which would take this case out of the general rule of damages, and bring it within the exceptions. The burden has not been successfully
borne. The appellants were only entitled to nominal damages.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.