
    William Englesdorff, Resp’t, v. Henry B. Sire, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    1. Landlord and tenant—Failure to give possession—Damages.
    Where a lessor fails to give possession of demised premises, the measure of damage is the difference between the actual rental value and the rent reserved.
    3. Same.
    During the pendency of proceedings to dispossess a former occupant, also claiming a lease, which proceedings were unsuccessful, the landlord permitted plaintiff to occupy adjoining premises, and plaintiff expended money thereon for shelving and gas fixtures, which he deemed necessary for the convenient transaction of business. Held, that such amount could not be recovered as damages against the lessor.
    3. Same—Evidence.
    Testimony of an expert that the value of the lease amounted to a certain sum over and above the rent reserved, taking into consideration an intended occupancy for a certain business, necessarily involves speculation upon the special profits which such business location would be apt to produce, and is insufficient to support a verdict, where it appears that the rent reserved in the lease was the fair rental value of the premises.
    Appeal from a judgment in favor of the plaintiff, rendered upon a verdict had at circuit; also, from an order denying defendant’s motion for a new trial
    
      Albert I Sire, for app’lt; David Gerber, for resp’t.
   Barrett, J.

The action is for damages for the defendant’s failure to give the plaintiff possession of certain leased premises. No question is raised upon this appeal as to the right of action. Indeed, it appears that the plaintiff was kept out of possession because of a lease given by the defendant to one Merrick, a previous under-tenant of the premises. The only questions, therefore, are as to the damages awarded at circuit. Two objections are made by the appellant; first, as to the damages generally, and, second, as to the admission of evidence with respect to special expenditures. This latter objection was, we think, well taken. It appears that when the plaintiff found it impossible to give immediate possession of the demised premises, he permitted the defendant temporarily to occupy the adjoining premises. This was in view of certain proceedings which were taken to dispossess Merrick and in the expectation that such proceedings would speedily result in giving the plaintiff possession. While the plaintiff was thus temporarily in occupation of the adjoining premises, he expended some money thereon which he deemed necessary for the convenient transaction of his business. The learned judge, under the defendant’s objection and exception, permitted proof of the expenditures thus made for shelving and gas-fixtures. These expenditures were not the direct and legitimate result of the defendant’s failure to give possession of the demised premises, nor did they flow naturally from the violation of his agreement. The cases of Driggs v. Dwight, 17 Wend., 71, and Giles v. O'Toole, 4 Barb., 261, are cited in support of the ruling; but these cases merely hold that the lessee may under such circumstances recover the expense of removal to the leased premises. The general rule, as settled in this state, undoubtedly is that where the lessor fails to give possession of the leased premises, the measure of damages is the difference between the actual rental value and the rent reserved. Trull v. Granger, 8 N. Y., 115; Pumpelly v. Phelps, 40 id., 60; Dodds v. Hakes, 114 id., 265; 23 St. Rep., 192. Special damages, such as expenses for removing to a remote farm, are not to he allowed. Williams v. Oliphant, 3 Ind., 271. Nor are conjectural profits expected from the use of the demised premises. Dodds v. Hakes, supra; Alexander v. Bishop, 59 Iowa, 572; Newbrough v. Walker, 8 Gratt, 16. The plaintiff here might as well have claimed for the expense of any other alterations or improvements made by him in these adjoining premises.

Such expenses had no j ust relation to the defendant’s breach of covenant. They related solely to the defective condition of the other premises. There is no exception to the general rule of compensation, nor extension thereof, in this class of cases, which would cover these items of damage. The same observation applies to the damages generally which were awarded to the plaintiff. They were wholly unsupported by competent evidence. A single real estate expert testified in substance that there was no actual difference between the rental value and the rent reserved; that is, between the ordinary rental value in the market and such reserved rent. He stated, however, that in his judgment the value of the lease was $1,500 over and above the rent reserved, taking into consideration the intended occupancy of the premises “as a notion and drygoods store.” Upon cross-examination he explained what he meant by this statement, as follows:

Q. Then why did you tell this jury that the value of this lease was $1,500 over and above the rent that was to be paid there ? A. Because the loss sustained by not having that as a business place during those three years would in my judgment amount to that.
Q. Upon what do you base your judgment as to the loss? A. In obtaining the store.
Q. That is, he lost $1,500 in his business; is that what you mean to tell the jury? A. He lost an equivalent to that by not having it for his business.
This was further emphasized by his subsequent testimony, namely:
Q. Will you state to the jury what you took into consideration ? A. The loss which the man sustained by not having that location for that special business in which he is engaged.
Q. Have you any personal knowledge as to what loss he sustained? A. No, I haven’t the exact facts.
Q. Do you know anything of it yourself except what was told you? A. Yes.
Q. Do you mean to testify that you have personal knowledge as to what loss he sustained? A. Not his personal loss, but the loss which a man would sustain in that business on that street.
Q. I understood you as having testified that you knew nothing about that business, and never was engaged in that business; is that correct ? A. Yes, that is correct.
Q. And that you have no personal knowledge as to the loss that he sustained in that street; is that correct? A. Not from him; no.

The witness thus practically speculated upon the special profits which such a business location would be apt to produce. He repeatedly said that the fair rental value of the premises was the amount of the rent reserved in the lease. Yet he insisted that they were worth more to the plaintiff than such fair rental value. He did not claim that they would rent for more as a notion and dry goods store, or indeed for any particular business. His claim was that they were worth $500 per annum more for such a business than their real or market value. If, however, the plaintiff could have obtained no advance upon the rent reserved, even from people desirous of occupying the premises “as a notion and dry goods store,” then it is difficult to perceive how they could be worth more to him except upon the theory of increased business and greater gains. Plainly, this latter is what it comes to, and it is clear that the rule which disallows speculative damages cannot be thus evaded.

We think this evidence was insufficient to justify the verdict which was rendered, and upon this ground, as well as for the error in the admission of the special items first considered, the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., concurs.  