82 N.Y.S. 1047 | N.Y. App. Div. | 1903
On the 5th day of April, 1902, the defendants, as executors of the last will and testament of Calvin Stevens, deceased, executed a lease in writing to the plaintiffs of part of the lower hall, of premises known as'No. 39 Broad street in the city of New York, being a space thirty-four inches in width and thirty-two feét in length, “ for the business, of telephone call booths,” and an office on the floor above for the same purpose, for the period of one year and fifteen days from the 15th day of April, 1902. The rent reserved was $600 per annum. The lease contained the following clause: “ The parties of the second part (meaning the plaintiffs) are allowed to rent their space to other parties for the same business purposes.” After the execution and delivery of the lease, but before the plaintiffs went into possession, and on the 12th day of April, 1902, the defendants notified the plaintiffs that they elected to cancel the lease and would not permit the plaintiffs to occupy the premises.
This action is brought to recover the damages sustained by the plaintiffs-in consequence of this breach of contract. The plaintiffs allege as a basis for .recovering special damages that they were obliged to pay a bonus of $500 in order to procure other premises for their business, and also allege that they sustained damages aggregating $1,500, for which they demand judgment.
Upon the trial plaintiffs offered no evidence of the special damages set tip. in the complaint. Counsel for the defendants, on the cross-examination of one of the plaintiffs, showed that the plaintiffs
If the defendants had leased to the plaintiffs a vacant lot for a term of years and then refused to give possession, it is quite clear that the plaintiffs would not be permitted to show affirmatively the rentals that they could obtain by a certain outlay of money in erecting buildings on the premises. They could show the existing facts, the availability and adaptability of the premises and demand therefor, but they would then be confined to showing the rental value of the premises as vacant land not with contemplated improvements thereon. The same principle applies here.
The judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; O’Brien, "J., dissented.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.- ■