
    The United States Trust Co., Trustee, Resp’t, v. Miles M. O’Brien, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 2, 1892.)
    
    1. Lease—Covenant —Damages.
    A lease to defendant contained a covenant that he would at any reasonable hour in the daytime permit the lessor or his agent to show the premises, and permit the usual notice to be posted and remain on the premises. Defendant sublet the premises, and his lessee refused to permit the lessor to show the premises or put up the notice. After the sub-lessee moved out the premises were vacant five months. There was no evidence that plaintiff could have let the premises, except as inferred from the fact of such refusal to show them to a person who was taken there for that purpose. Held, that there was no such reasonable certainty that plaintiff could have rented the premises if the covenant had been literally performed as to justify the recovery of rent for the time they remained vacant.
    2. Same—Injunction.
    In such case the landlord has a perfect and complete remedy by injunction to prevent interference with his rights under the covenant.
    Appeal from judgment in favor of plaintiff and from order denying motion for new trial.
    The action is by the plaintiff, as the successor in interest of the landlord of No. 240 Bast Sixtieth Street, against the defendant as tenant, to recover damages for a breach of the following covenant, contained in the lease of the premises, “ that the defendant will at any reasonable hour in the day time, permit the lessor or his agent to show the premises to such persons as he desires for for the purpose of selling or leasing the same, and will permit the-usual notice of To Let’ to be posted on the premises there to remain without molestation.” The demise was for three years commencing May 1, 1886, and ending May 1, 1889. In November, 1888, the defendant vacated the premises, and in the following February he sub-let them from March 1st till May 1, 1889, to a Mrs. Worms, who refused to permit the plaintiff to exhibit the premises or put up the bill of “ To Let ’’ provided for by the. covenant. Mrs. Worms moved away on May 1, 1889, and the premises remained vacant for about five months. They were worth about seventy-five dollars per month, and the jury awarded the-plaintiff $375 damages, being the rent for the time the premises were vacant. There was no evidence that the plaintiff could have rented the premises, except that to be inferred from the fact that the defendant’s lessee, Mrs. Worms, refused to show the premises-to a person taken there to inspect them and saying she would not-permit any person to examine them, and by her refusal to permit the bill of “ To Let ” to remain on the premises.
    The defendant moved for a new trial which was denied, and from the judgment and order denying said motion the defendant appeals.
    
      Durnin & Hendrick, for app’lt; Stewart & Sheldon and S. H. Benton, for resp’t.
   McAdam, J.

Liability for breach of covenant is less extensive than that for a tort, and involves only such consequences as are the direct and proximate result of the act complained of. There are certain arbitrary rules in regard to such breaches, the principal of which is to give compensation for what is actually lost, to make the damages correspond with the real injury sustained, but not to permit a recovery where the loss cannot be directly traced to the act done or omitted. It will be sufficient if the injury is a natural or necessary consequence of the act, but remote or merely possible consequences are excluded from consideration. There are many cases of loss for which the law affords no adequate remedy; hence has arisen the system of preventive justice administered in the courts of equity, by means of injunction to restrain breaches of covenant. Covenants not to sub-let or assign have not generally raised any question of damage, but one of forfeiture, 3 Sutherland on Dam., 143, owing to the difficulty in establishing any legal measure of compensation for the breach. The question involved here is much like that suggested. There is no reasonable certainty that the plaintiff would have let the house if the covenant said to have been violated had been literally performed. Sometimes the condition of the inside of a house is more uninviting than the outside, and an inside examination (if one had been afforded) might have repulsed the applicant for the house at once. There was, therefore, no solid, substantial basis on which the jury could find, as matter of fact, that the refusal to perform the covenant was the sole cause of keeping the plaintiff’s house idle for five months, and that the plaintiff as a consequence lost so many months rent. The result arrived at was necessarily speculative and conjectural. If the action had been founded on tort, instead of upon contract, a more liberal field for the exercise of discretion would have been afforded to the jury, but they were limited in this case to the awarding of compensation for the actual, not the possible loss, and there is no way of determining from any of the evidence adduced that the sum awarded was necessary to compensate the real injury done or that the acts of the undertenant were the proximate cause of so much damage. It is owing to the impossibility to arrive at a legal measure of damages with any sufficient degree of certainty that courts of equity entertain jurisdiction in such cases, Pom. Eq., § 1403, and by writ of injunction in the nature of specific performance enforce the terms of the covenant.

This could have been done here by enjoining the defendánt and his tenant from preventing the plaintiff putting up.the bill of To Let,” or from interfering with it after it was put up, or from exercising its right of showing the premises during some reasonable hour of the day to be determined by the court, and best calculated to serve the object of the covenant and the convenience of all concerned. The court gives specific performance instead of damages when it can by that means do more perfect and complete justice, and the covenant sought to be compensated by damages could have been more effectually enforced at the time with perfect and complete justice in equity than it can now by the uncertain character of proof available in an action at law for compensatory damages.

A man who enters into an agreement is bound in equity to a true and literal performance of it. He cannot be suffered to depart from it at pleasure, leaving the other party to his remedy for damages by law. Kerr on Injunction, 583. It is no answer to say that the act complained of "will inflict no injury on the plaintiff, or will be even beneficial to him. It is for the plaintiff to judge whether the agreement shall be preserved as far as he is concerned, or whether he will permit it to be violated. Id., p. 532. There is no wrong without a remedy, which means its appropriate remedy, and where that is to be found iu equity it should be sought for there, or the plaintiff may be referred to injuria absque damna or some other maxim which may defeat his recovery at law. There was nothing in the proofs presented to warrant the damages allowed to the plaintiff, and for this reason the judgment and order appealed from must be reversed and a new trial awarded, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.  