
    Augustus M. Fake, Resp’t, v. Dayton S. Kellogg, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Contract—Breach—Damages.
    In an action for breach of a contract by a vendor on a sale of land for building purposes that he would make, construct and complete a street upon his own land to said premises the measure of damages is the diminution in the value of the premises sold by reason of the failure to construct such street, and not the difference in rental value. There cannot be said to b) a rental value for vacant lots, particularly when situated in a locality just opened up for building purposes.
    Appeal from judgment in favor of plaintiff, entered upon report of referee.
    Action for damages for non-performance of certain covenants made in connection with and contained in a contract for the sale of land.
    April 1, 1885, the parties to this action made and entered into 1 an agreement, and which was evidenced by a writing under seal, for the sale by the defendant to the plaintiff of a parcel of land, consisting of two village lots, situate in the village of Fort Plain, FT. Y. The said agreement contained, besides the contract for sale of the premises, certain covenants by and on the part of each of said parties, to wit: On the part of the plaintiff that he would erect upon said lots, and complete ready for occupancy by or before July 1, 1886, a dwelling house of the value of at least $2,000, and, on the part of the defendant, that he would:
    
      First. Construct and complete upon and along the course of Kellogg avenue, from the Fort Plain & Cherry Valley road to "Waddell and Clinton avenues, a street which should conform, as regards grade, surface, drive-ways, water-ways, etc., to certain specifications in said agreement particularly set forth and which should be maintained by the defendant until the same was accepted as a public street by the trustees of the village of Fort Plain.
    
      Second. Grade, construct and well and properly gravel driveways of thirty feet in width, connecting with Kellogg avenue and extending along Clinton avenue to Henry street and along Wad-dell avenue to Gilbert avenue.
    
      Third. Construct and maintain, along the course of Rural Walk and Kellogg avenue, a walk of width, grade and construction specified in said agreement.
    
      All of said work was to be completed on or before October 1, 1885.
    Defendant failed to comply with his covenants, and this action was, therefore, brought.
    On the trial the referee admitted evidence, under objection, to show the diminution in value of plaintiff’s lots by reason of such failure to perform on defendant’s part.
    
      George E. Phillips (A. J. Nellis, of counsel), for app’lt; Wendell & Van Deusen (John D. Wendell, of counsel), for resp’t.
   Herrick, J.

I think the judgment should be affirmed.

The rule of damages contended for by the appellant I do not think -applies to a case like this. There can hardly be said to be a rental value for vacant lots, particularly when situated in a locality just opened up for building purposes.

A large part of the value to purchasers undoubtedly consisted in the promise that streets should be opened and laid out, and the adjoining property thereto made desirable for places of residence and business. I see no occasion for an opinion. See Post v. West Shore R. R. Co., 50 Hun, 301; 20 St. Rep., 180.

Judgment affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.  