18 A.D.2d 924 | N.Y. App. Div. | 1963
In an action by the lessee of a store in a shopping center owned by the defendant lessor (a) to declare the rights of the parties under their lease dated November 8, 1955; (b) to recover damages for the breach of the lessor’s covenant in said lease not to rent a store to more than one other tenant in a competing business; and (e) for pther relief, the plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County, entered July 13, 1961 upon the opinion and decision of the court after a nonjury trial, as awarded to the plaintiff nominal damages in the sum of $1. Judgment, insofar as appealed from, reversed on the ljrw and the facts, with costs, and the action remitted to the Special Term for the limited purpose of assessing the damages, which are to be computed on the basis of the duration of the Harvey lease. Findings of fact contained in the decision of the Special Term which may be inconsistent herewith are reversed,1 and new findings are made as indicated herein. The Special Term found that defendant was guilty of a breach of the lease, but that plaintiff had failed tj) establish damages by reason of the breach thereof. While loss of profit is the more accurate measure of damage, the evidence is insufficient to warrant a finding as to the extent of the sales lost by plaintiff to Harvey’s, the unauthorized competing tenant. However, we are of the opinion that, for the breach! of the. covenant herein against additional competition, plaintiff is entitled to recover the difference in rental value of its
