
    (61 Misc. Rep. 81.)
    LIVINGSTON v. ROBB et al.
    (Supreme Court, Appellate Term.
    November 24, 1908.)
    1. Landlord and Tenant (§ 160)—Use of Premises—Covenant to Surrender in Good Condition—Action for Breach.
    Though a tenant was removed by summary proceedings, the right to recover for breach of his covenant to surrender the premises in good condition remained in force.
    [Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig, § 160.*]
    2. Landlord and Tenant (§ 160*)—Use of Premises—Covenant to Surren•der in Good Condition—Breach—Damages.
    In an action for breach of a tenant’s covenant to surrender the premises in good condition, brought after his removal by summary proceedings, plaintiff may recover as damages the rental value and the cost of removal of the tenant’s property, but not counsel fee, marshal’s fees, and charges for taking out the precept, its sendee, and for docketing the summary proceedings; those items not being contemplated by the covenant as a result of its breach.
    [Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig, § 160.*]
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by L. Helen Livingston against John M. Robb and another. From a judgment* for plaintiff, defendants appealed.
    Modified and affirmed.
    Argued before GIEDERSLEEVE, P. J., and MacEEAN, and SEABURY, JJ.
    Harold C. Knoeppel, for appellants.
    Ralph H. Raphael, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   MacEEAN, J.

The plaintiff brought this action to recover damages alleged to have been sustained in consequence of a breach by the defendants of the covenant to surrender the premises in good condition at the termination of their lease. Having removed the defendants by summary proceedings, the right to recover for a breach of the covenant remained in force. Vernon v. Brown, 40 App. Div. 204, 58 N. Y. Supp. 11. In that case rental value and cost of restoration were allowed as damages, as herein may be allowed the rental value and cost of removal of property belonging to the defendants, but not the sums allowed by the court below consisting of counsel fee, marshal’s fees, and charges for taking out the precept, service of same, and putting the summary proceedings on the calendar, as not properly contemplated within the result of the breach of the covenant sued on. The judgment should therefore be reduced by the sum of $38.50, and, as thus modified, affirmed without costs of this appeal to either party.

Judgment modified by being reduced by the sum of $38.50, and, as thus modified, affirmed, without costs of this appeal to either party. All concur.  