Wechsler v. O. J. Gude Co.

GILDERSLEEVE, P. J. This action was brought during the continuance of a written lease to recover the reasonable costs of repairs, which the defendant was bound, under said written contract of lease, to do, but which defendant refused to do, and which plaintiff himself did at his own expense. The action is for breach of contract to repair. Under the authority of Appleton v. Marx, 191 N. Y. 81, 83 N. E. 563, 16 L. R. A. (N. S.) 210, where an action, brought by a landlord for the breach of a lessee’s covenant to keep the premises in repair, is commenced before the expiration of the term, the measure of damage is the injury done to the reversion, while, if the action is brought after the expiration of the term,o the measure of damage is the cost of putting the premises into repair. Plaintiff sought to prove damages upon the latter theory; but, as the action was brought before the expiration of the term, the court dismissed the complaint for failure to show damage to the reversion, but without [1038] prejudice to a new action. The judgment should ;be affirmed) with costs. Judgment affirmed, with costs. SEABURY, J., concurs.