Podalsky v. Ireland

Miller, J.: We shall assume that there was sufficient evidence of the general agency of the defendant’s son, and that the agreement of lease was [259] binding upon the defendant; but there is no evidence whatever to show a breach of that agreement by the defendant. By it the defendant agreed to have the premises ready for occupancy on the fifteenth' of April, but there is no evidence whatever that he did not perform that agreement. The mere fact that the plaintiffs found the door locked on the first of May does not prove that they were kept out of possession by any act of the defendant. Of course, the defendant was obliged to perform his covenants, and if he failed to have the premises ready for occupancy as he agreed, he would doubtless • be liable for the damages caused by the breach. While he was bound to give the plaintiffs the right to possession, he was not obliged physically to put them in possession. (Smith v. Barber, 96 App. Div. 236; Trull v. Granger, 8 N. Y. 115.) What some stranger may have said to the plaintiffs was not evidence against the defendant. Moreover, the plaintiffs were only entitled to recover the difference between the rent reserved in the lease and the rental value of the premises, and' any necessary expenses incurred in preparing for occupation of the premises which were within the contemplation of the parties. (Friedland v. Myers, 139 N. Y. 432.) Of course, rental value would have to be determined with reference to all of the privileges which the lessee was to enjoy, but there was no basis whatever for allowing a recovery for what the plaintiffs actually paid for electric lights during the period covered by the lease. The judgment should be reversed and a new trial granted, costs to appellant to abide event. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.