
    Louis Goldman, Respondent, v. John J. Gainey, Appellant.
    
      Action to recover damages for the breach of a contract of lease—where no general damages a/re alleged, the difference between the actual rental value and the rent agreed upon cannot be recovered— special damages must be alleged.
    
    Where the complaint in an action to recover damages for the breach of a contract • of lease, because of the refusal of the defendant to let the plaintiff into possession of the demised premises at the beginning of the term, fails to allege any general damages, and avers “that by reason of the failure of the defendant to perform his part of the agreement as aforesaid, said plaintiff has suffered great damage on-account of the expense which he has incurred in preparing to take possession of said premises, and on account of the loss of business which the plaintiff verily believes he has sustained by being deprived of a place of business in the particular locality named;" and then demands , judgment “ for five hundred dollars damages, besides the cost of this action,” the plaintiff is not entitled to recover any general damages, e. g., the difference between the actual rental value of the premises and the rent agreed to be paid.
    
      Semble, that the plaintiff cannot recover for expenses incurred by him in painting his sign on the window of the premises and on his delivery wagon, unless such items of damage are specially pleaded.
    Appeal by the defendant, John J. Gainey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 10th day of January, 1901, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 9th day of January, 1901, denying'the defendant’s motion for a new trial made upon the minutes.
    
      
      M. N. Tompkins, for the appellant.
    
      F. K. Dalley, for the respondent.
   Parker, P. J.:

The plaintiff complains that the defendant agreed to rent to him a portion of a store in Ithaca, N. Y., viz., desk room in front and the rear partitioned off for a workshop, for the sum of $100 per year, payable monthly in advance, the term to commence and possession to be given September 17, 1900; that upon that day, when tendered the first installment of rent, the defendant refused to let him take possession, and has ever since repudiated the contract so made. He brought this action to recover damages for such breach, and recovered upon the trial a verdict for $90 damages, upon which judgment for that amount and costs was entered. From such judgment and order denying a motion for a new trial on the minutes this appeal is taken.

On the trial the plaintiff was allowed to testify that the rental value of the store, meaning, the portion which the defendant had agreed to rent to him, was $300 per year. This evidence was taken under the defendant’s objections, among other grounds, that it was not alleged, and was inadmissible under the complaint; and to the ruling admitting it an exception was duly taken.

The complaint, after setting forth the bargain and the breach thereof by the defendant, goes on to state : That by reason of the failure of the defendant to perform his part of the agreement as aforesaid, said plaintiff has suffered great damage on account of the expense wdiich he has incurred in preparing to take possession of said premises, and on account of the loss of business which the plaintiff verily believes he has sustained by being deprived of a place of business in the particular locality named;” and then demands judgment for five hundred dollars damages, besides the cost of this action.”

In an action for a breach of contract, such as is here set forth, the difference between the actual rental value of the premises and the amount agreed to be paid therefor, are general damages, which need not be specifically pleaded; but I apprehend that there must be an averment in the complaint that some damage has accrued to the plaintiff.from the mere breach, in order to recover even those Which the law assumes flow naturally and necessarily from such breach. Special damages, such as that the plaintiff had incurred expense in painting his sign on the window of the premises and on his delivery wagon, and which he pleaded and was allowed to prove in the action, can be proven only when facts have been set forth in the complaint showing that they have been incurred.

It will be noticed that, in this complaint, there is no averment that the plaintiff has suffered any damage whatever from the breach of this contract, save such as arose from the special damages which ' he has therein claimed. He “ suffered great damage on account of the expense which he has incurred in preparing to take possession,” etc., etc. There is no charge that he suffered damage in any other way — no suggestion that any general damages had accrued to him from such breach. On the contrary, by averring that he had suffered certain special damages, and not claiming that any damages whatever had accrued to him other than those, he misleads the defendant into the idea that no claim for any other will be made. Under such a pleading, the defendant might omit to prepare to meet the claim that the actual rental value of the premises was more than the rent agreed to be paid; and, hence, it was error to allow the plaintiff to prove it.

I would not hold that the plaintiff could not prove, as general damages, this difference between the price and the rental value of the premises, without specifically setting it up in the complaint, if he had charged any general damages whatever as flowing from the breach. But he not only omits to do that, but he distinctly charges that the damages which he.claims to have suffered were those special damages which he specially sets forth. In other words, he makes special averments of special damages and omits altogether the ad darrmwm clause under which general damages alone can be proven. (5 Ency. Pl. & Pr. 717; Gumb v. Twenty-third St. R. Co., 114 N. Y. 411, 414.) Thus he tenders upon the question of damages, a distinct and narrow issue. It would seem that upon the trial he should have been confined to that issue.

Moreover, the plaintiff is the only one who testifies that the annual rental value of such premises was $300. ■ No other witness, testifies to their value, except the' defendant and his two witnesses^ who testify that the fair rental value was $100 per year. In view of the fact that such was the sum which the defendant asked, it would seem that he was honest in his testimony; and it is quite improbable that he did not know within $200 of what they were fairly worth. It is incredible that the plaintiff’s statement that they were worth $300 is accurate. I cannot believe that they were worth three times as much as he was to give for them, and that lie had $200 benefit in that bargain. Neither did the jury believe that. The court instructed them that, in addition to the difference between the actual rental value of the premises and what the plaintiff agreed to pay, he could recover $o expended for the purpose of painting signs on the window and wagon. All other of the special damages claimed were excluded. The jury allowed the plaintiff $90 damages. In my judgment, the clear weight of evidence is against such a verdict. It is a verdict which, under the complaint in this action, should not be allowed to stand. The judgment and order should be reversed, both on the law and the facts, and a new trial granted.

Smith, Edwards, Chase and Houghton, J.T., concurred.

Judgment and order reversed, and new trial granted, with costs to defendant to abide event.  