110 N.Y.S. 287 | N.Y. App. Div. | 1908
The lease to the plaintiff from the defendant contained a covenant for a renewal of a term to begin immediately after April 1,
1903. The tenant sued for a specific perfoi’mance of that covenant. The defendant’s demurrer which challenged any cause of action was sustained at Special Term and in this court (83 App. Div. 36), but was reversed in the Court of Appeals. (Neiderstein v. Cusick, 178 N. Y. 543.) The defendant answered and now appeals from the judgment for the plaintiff rendered upon trial. The Special Term found that specific performance was impossible, in that the city of Hew York condemned the premises for park purposes and took title thereto on April 25, 1904.
The judgment of the Court of Appeals is the law of this case, and under it the plaintiff was entitled to a renewal beginning immediately after April 1, 1903. The plaintiff as a lessee (and such would have been his status but for the refusal of the defendant to keep her covenant) would have been entitled to compensation for the paramount eviction by the city in its exercise of the right of eminent domain. (Greater N. Y. Charter, § 980.
The learned Special Term applied the correct rule of damages, viz., the difference between the rental value of the premises for the full term specified, namely, five years, and the rent reserved in the lease. (Trull v. Granger, 8 N. Y. 115; Dodds v. Hakes, 114 id. 265; Eastman v. Mayor, 152 id. 473; Larkin v. Misland, 100 id. 212.) But the amount of the judgment is erroneous. The court found without exception that the plaintiff remained in possession and in occupancy as the tenant, of the defendant down to April 25,
1904. Hence in determination of the amount of the damages the pei’iod of such possession and occupancy must be excluded from the five yeai’s’ term. For the plaintiff during that time enjoyed from the landlord all that he was entitled to if the renewal of the lease had been given. The court also found without exception that the plaintiff remained in occupation and possession as the tenant of the city until on or about the month of September1,1905, and it is contended that this period should likewise be excluded from the five years’ term. But the defendant in no way procured such
The judgment is reversed and a new trial is granted, costs to abide the event, unless within twenty days the plaintiff consent toa reduction of the judgment in accord with the opinion, in which event the judgment as so modified is affirmed, without costs. Settle the order before Mr. Justice Jenks.
Woodward, Hooker, Rich and Miller, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff consent to a reduction of the judgment in accord with the opinion of Jenks, J., in which event the judgment as so modified is affirmed, without costs.
See Laws oí 1901, chap. 466, § 980. Since amended by Laws of 1905, chap. 899, and Laws of 1906, chap. 658.— [Rep.