23 N.Y.S. 375 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment entered upon a verdict of a jury, and from a motion denying a new trial upon the minutes. There seems to have been no error committed upon the trial, except in the instructions as to the rule of damages. We think the rule which the court was requested to charge, to wit, “that, if the plaintiffs are entitled to recover at all, they can only recover the difference in value of the use of the premises as they were, and as they would have been if the defendant had kept his agreement,” was the correct one, and should have been charged. It is very clear that the verdict is excessive, even assuming that the rule charged is true. It seems that after the storm, and after plaintiffs knew the full extent of the damage they had suffered, they fixed the amount of their damages at about $400, and, without some explanation upon their part, they ought to have been confined to that sum. Again, the evidence is very unsatisfactory as to the elements of damage that should be taken into consideration, but it is unnecessary to discuss that part of the case.
It is plain that plaintiffs knew as well if not better than the defendant the condition of the roof after the fire, and the hazard of leaving their designs in a position to be damaged in case of a recurrence of a storm. If they elected to leave their property, which they knew water would damage, in a place where they had reason to believe that the rain would beat in case of a storm, they did it at their own risk, and must suffer the consequences. Cook v. Soule, 56 N. Y. 423. Such injuries as are here complained of could not reasonably have been contemplated by the parties when the lease was made. Again, it may be said that under the eighth clause of the lease the plaintiffs took the risk of all damage from water. Judgment reversed, and new trial ordered; costs to abide the event.