
    George Godfrey, Appellant, v. The India Wharf Brewing Company, Respondent.
    
      Breach of a covenant by a landlord to keep demised premises in repair — the difference in rental value is the measure of damages—neither profits lost nor anticipated profits are recoverable.
    
    The measure of damages for a breach, on the part of a landlord, of a covenant that the premises were in good repair at the time of the making of the lease and that the landlord would keep them in such repair during its continuance, is the difference between the rental value of the premises as they were represented to be and as they actually were.
    Anticipated profits cannot be made the basis for a claim by the tenant.
    Semble, that profits, which the tenant, who conducted a business on the demised premises, claims to have lost by reason of the landlord’s, breach of covenant, cannot be recovered by him.
    Appeal by the plaintiff, George Godfrey, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 21st day of January, 1903, upon the verdict of a jury rendered by direction of the court.
    
      Eugene N. L. Young, for the appellant.
    
      Edward C. McParlan, for the respondent.
   Hirschberg, J.:

The complaint states two causes of action, one to recover the balance remaining after- deducting a small bill for goods sold by the defendant to the plaintiff from the sum of $100 deposited as security by the plaintiff with the defendant on the occasion of hiring certain premises in the borough of Brooklyn, and the other for damages for the alleged breach of covenant on the defendant’s part to the effect that such-premises were in good repair at the time the plaintiff hired them and that they would be so maintained during the plaintiff’s tenancy.

The hiring took place in August* 1902, the rent to commence on September first, at $25 per month, and the tenancy to be from month to month. The place had been and was to be used as a liquor saloon. The' liquor tax certificate was transferred by the defendant to the plaintiff, and his demand note taken for the value of the unexpired period. The $100, as appears by a written receipt given at the time, was deposited not as security merely for bills received by the plaintiff for goods sold, but as security for any and all sums which may become due from him to the defendant. The plaintiff remained in possession of the demised premises from the time of the hiring until some time in January, 190.3, but paid no rent. At the close of the evidence the court directed a verdiót in favor of the defendant for the five months’ rent, the amount of the conceded bill for goods, and the promissory note after deducting therefrom the deposit of $100 and the sum of $105, being fifteen weekly payments of. $7 each made by the plaintiff towards defraying the cost of the liquor tax certificate, and also after deducting the proportionate value of the license from January until its expiration. There appears to be no dispute about these items they were all pleaded by way of counterclaim; and the disposition of the case was proper provided the plaintiff made no proof of his claim for breach of the contract sufficient to carry the case to the jury.

The plaintiff failed to make such proof. He gave evidence tending to establish that two or three weeks after his occupancy commenced a storm arose and the roof leaked; that it leaked on the occasion of every storm thereafter, and that no repairs were made by the defendant while he remained in possession. He also testified that the defendants authorized manager at the time of the hiring assured him that the premises were in good repair, and that the defendant would keep them so. This was denied on the defendant’s behalf, although it was proven that on complaint. by the plaintiff of the leaky condition of the roof the defendant caused it to be repaired in December. Assuming that the jury could have found in plaintiff’s favor upon this issue, the measure of damages would be the difference between the rental value of the place as represented and guaranteed and as it was, and upon this question no evidence whatever was given beyond the. fact that the plaintiff ágreed to pay twenty-five dollars a month. The plaintiff claimed that his profits during the two months preceding the first storm amounted to from twenty-five dollars to thirty dollars weekly, but even if loss of profits were recoverable, there was no evidence given showing their amount. There was no proof of the difference in the amount of profits or anything indicating loss beyond what has been stated.

The anticipated profits could not be made thé basis of a claim in this case, the rule applicable to the facts being, as already suggested, the difference in value of the use of the premises as they are and as the lessor agreed they were or as he agreed to put them. (Myers v. Burns, 35 N. Y. 269; Cook v. Soule, 56 id. 420; Pryor v. Foster, 130 id. 171; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 id. 34, 47; Drago v. Mead, 30 App. Div. 258; Huber v. Ryan, 57 id. 34.)

The judgment should be affirmed.

Goodrich, P. J., Bartlett, Jerks and Hooker, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  