
    Edgar M. Williamson and Stanley D. McGraw, Respondents, v. C. Amory Stevens, Executor, and M. Grace Richardson, Executrix, etc., of Calvin Stevens, Deceased, Appellants.
    
      Action by a tenant against executors who withhold possession of pn'emises demised by, ' them under a power in their testators will—they are liable individually — the word “ executor ’’ in the title of the suit is a descriptio person®—proof as to the rental value of the demised pn'emises —proof as to the profits which could be realized from, a business conducted on the demised premises.
    
    In an action-by a tenant against his landlord for wrongfully withholding possession of the demised premises, the plaintiff is ordinarily entitled - to recover as the minimum amount of his damages the difference between the rental value of the premises for the term leased and the rent reserved, such damages being the reasonable,' natural and proximate loss sustained by the tenant through the landlord’s breach of contract; but the recovery is not in all cases confined to this difference of-rental value, which is general damages, as special damages, which are the- natural but not the necessary consequences of the breach, are also recoverable if properly alleged and shown.
    In such an action it appeared that the premises leased consisted of' a part of the lower hall of a building'and an office on the floor above “ for the business of telephone call booths, ” and that the plaintiffs’ object in securing these particular premises was their knowledge that the stockbrokers operating, upon the curb market intended to take up their position outside of the building in quesr tion and that there would be a great demand for telephones conveniently located.
    Upon the trial one of the plaintiffs was asked, “Can you state of your own knowledge some of the prices paid by brokers for telephones to the curb market?” The defendants objected to the question, and after the objection had been overruled and the defendants had excepted, but before the witness answered, the court said, “ The question is what is the fair value of it, not what somebody will pay as a favoring price?” The witness answered “ §250 a year.”
    
      Held, that if the witness answered the question as propounded by his counsel, it was entirely incompetent, as the price which some broker might have paid on some special occasion for the use of a telephone had no bearing upon the question at issue;
    That, even if the witness understood that the question was modified by the court, the evidence was incompetent, as it did not appear that the witness was qualified to testify to the rental value of the property, and for the further reason that to allow the plaintiffs to show affirmatively, and recover, the amount they would have received by constructing and renting telephone booths in the space leased, would be to allow a recovery of their profits upon the business to be transacted in the demised premises as distinguished from the fair rental value of the premises, and that this was not permissible;
    That the question to be determined was the fair rental value of the premises in the condition in which they were at the time the lease was made, and that, in determining that question, the jury would have a right to consider the demand for the use of the premises for telephone purposes and the opinions of experts as to the rental value of the premises;
    That in giving his opinion as to the rental value of the premises, an expert might take into consideration the fact that the curb market was located on the sidewalk in front thereof, the number of telephone booths which could be constructed in the space rented, the cost of construction of such booths, and the rental which could be obtained therefor;
    That,-although the defendants, in executing the lease, had acted as executors under a will pursuant to authority contained in the will, they were liable only in .their individual capacity;
    That the fact that the title of the action designated the defendants as “0. Amory Stevens, Executor, and M. Grace Richardson, Executrix, etc., of Calvin Stevens, Deceased,” did not establish that the action was brought against the defendants in their representative capacity instead of in .their individual capacity, there being nothing in the complaint indicating an intention to charge the defendants in that capacity;
    That that part of the title of the action stating that the defendants were executors was déscriptio persones and might be disregarded as surplusage.
    O’Brien, J., dissented.
    Appeal by the defendants, C. Amory Stevens, executor, and another, executrix, etc., of Calvin Stevens, deceased, from a judgment" of the Supreme Court in favor of the plaintiffs, entered in the .office of the clerk of the county of New York on the 26th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the' 30th day of December, 1902, denying the defendants’ motion for á new trial made upon the minutes, and also from an order entered in said clerk’s office on the 30tli day of December, 1902, denying the defendants’ motion for leave to renew said motion for a new trial.
    
      Franklin Pierce, for the appellants.
    
      James A. G. Johnson, for the respondents.
   Laughlin, J.:

On the 5th day of April, 1902, the defendants, as executors of the last will and testament of Calvin Stevens, deceased, executed a lease in writing to the plaintiffs of part of the lower hall, of premises known as'No. 39 Broad street in the city of New York, being a space thirty-four inches in width and thirty-two feét in length, “ for the business, of telephone call booths,” and an office on the floor above for the same purpose, for the period of one year and fifteen days from the 15th day of April, 1902. The rent reserved was $600 per annum. The lease contained the following clause: “ The parties of the second part (meaning the plaintiffs) are allowed to rent their space to other parties for the same business purposes.” After the execution and delivery of the lease, but before the plaintiffs went into possession, and on the 12th day of April, 1902, the defendants notified the plaintiffs that they elected to cancel the lease and would not permit the plaintiffs to occupy the premises.

This action is brought to recover the damages sustained by the plaintiffs-in consequence of this breach of contract. The plaintiffs allege as a basis for .recovering special damages that they were obliged to pay a bonus of $500 in order to procure other premises for their business, and also allege that they sustained damages aggregating $1,500, for which they demand judgment.

Upon the trial plaintiffs offered no evidence of the special damages set tip. in the complaint. Counsel for the defendants, on the cross-examination of one of the plaintiffs, showed that the plaintiffs subsequently hired the store floor of premises No. 52 on the opposite side of the street, and about 125 feet further down. The defendants having thus opened the door, counsel for the plaintiffs showed on re-direct examination that these premises were not as convenient or suitable as the premises which they leased from the defendants, and required the employment of office boys, which would have been unnecessary had they been permitted to beep the premises leased of the defendants. No estimate was given by the witness of the difference in rental value between the, premises thus actually occupied and those covered by the lease given by the defendants, nor did he specify the extra expensé of messenger service. It is evident that this evidence was not received for the purpose of showing the special damages, but merely to counteract the effect of the evidence drawn out by the defendants tending to show that plaintiffs had succeeded in obtaining premises for the transaction of their business in the immediate neighborhood, which, unexplained, might be understood as indicating that no damages had been sustained. The case then, on the complaint and on the evidence, was one for general damages only, and this was the theory on which it was submitted to, the jury by the learned trial justice, who properly instructed the jury that the plaintiffs were only entitled to recover the surplus or excess of rental value of the premises over and above the rent reserved in the lease. /Trfan action by a tenant against Lis landlord for wrongfully withholding possession of the demised premises, the plaintiff is ordinarily entitled to recover as the minimum amount of his damages the difference between the rental value of the premises for the term leased and the rent reserved, such damages being the reasonable, natural and proximate loss sustained by the tenant through the landlord’s breach of contract; but recovery is not in all cases confined to this difference of rental value, which is general damages, special damages, which are the natural but not the necessary consequences of the breach, being also recoverable if prtiperly alleged and shown. (Engelsdorf v. Sire, 64 Hun, 209; Driggs v. Dwight, 17 Wend. 71; Chatterton v. Fox, 5 Duer, 64; Dean v. Roesler, 1 Hilt. 420; Friedland v. Myers, 139 N. Y. 432, 435, 436 ; Mack v. Patchin, 42 id. 167 ; Dodds v. Hakes, 114 id. 260 ; Oehlhof v. Solomon, 73 App. Div. 329, 333; Vanderslice v. Newton, 4 N. Y. 130.)

In behalf of the plaintiffs, competent evidence was- given tending to show that the fair rental value of the premises for the purpose for which they were leased with the privileges granted the lessee, was considerably more than the rent reserved, and this evidence was sufficient to justify the recovery of the verdict rendered by the jury. The plaintiffs were stockbrokers. They and about 200 other brokers transacted their business on the curb in front of the Stock Exchange or Mills building on Broad street and comprised what is known as'the curb market. On account of the rebuilding of the exchange it became necessary for the curb market brokers to select another place to transact their business. The plaintiffs being aware that the curb brokers intended to locate in front of 39 or 35 Broad street and knowing that the use of telephones was essential in that business and that there would be a great demand for telephones conveniently located, obtained this, lease at a low rental before the defendants became aware of these facts. The brokers did locate in front of these premises about the first of May and the evidence shows that the premises leased by the plaintiffs were very valuable for the purposes for which they were to be used as specified in the lease. The "plaintiffs, however, were not content to rely upon this evidence, and they persisted in introducing incompetent evidence on the question of damages which requires a reversal. Qne of the plaintiffs was asked by his counsel on direct examina: tion, Can you state of your own knowledge .some of the prices paid by brokers for telephones to the curb market % ” This was objected to as incompetent and not an element of damage or alleged in the complaint. The objections were overruled, the defendants excepted and the witness answered, “ $250 a year.” After the objections were stated and overruled- and the defendants had excepted, but before the witness answered, the record shows the following : The Court: The question is, what is the fair value of it, not whát somebody will pay as a favoring price ? ” If the witness answered the question propounded by. counsel it was utterly incompetent. No time, place of circumstance is shown. What some broker may have paid on some special occasion for the use of a telephone sheds no light on .the question at issue. Even if the witness -understood that the question was modified by the court, which is doubtful, still the evidence was not competent. In the first place the witness did not qualify. It did not appear that he was familiar with the rental value of this or any other property there or elsewhere. Furthermore it involves an element of special damages which were not alleged and could not be recovered even if alleged. Both of these questions related to profits, the loss of which are not the necessary consequences of the breach by the landlord. Before such profits could be realized it would be necessary to erect telephone booths, the expense of which' was 'not shown. The plaintiff in such an action would not be entitled to show affirmatively how many telephone booths he could construct in the space rented and what rental he could .probably obtain therefor even if he showed the cost of construction. These are matters that might be taken into consideration by a witness in giving his opinion of the rental value of the property for telephone purposes, but the question to be determined was, what was the fair rental value of the premises for such purpose in the condition in which they were ? In determining that question the jury would have a right to consider the demand for the use of the premises for telephone purposes. An important element in this consideration was the fact that the curb market was located on the sidewalk in front. An expert in giving his opinion as to this rental value would have a right to take into consideration all these elements. But to allow the plaintiff's to show affirmatively and recover the amount they would have received by constructing and renting telephone booths in the space leased, would be to allow a recovery of their profits upon the business to be transacted in the premises as distinguished from the • fair rental value of the premises, and this is not permissible. (Dodds v. Hakes, supra; Giles v. O'Toole, 4 Barb. 261; Lawrence v. Wardwell, 6 id. 423; Lattin v. Davis, Hill & D. 9.)

If the defendants had leased to the plaintiffs a vacant lot for a term of years and then refused to give possession, it is quite clear that the plaintiffs would not be permitted to show affirmatively the rentals that they could obtain by a certain outlay of money in erecting buildings on the premises. They could show the existing facts, the availability and adaptability of the premises and demand therefor, but they would then be confined to showing the rental value of the premises as vacant land not with contemplated improvements thereon. The same principle applies here.

The appellants strenuously urge that they have been sued in their representative capacity, and that, therefore, the action cannot be maintained, Since this question will in all probability arise on the new trial, which is- necessitated on account of the error already pointed out, it requires consideration. That these defendants are executor and executrix' is shown in the title of the action, but it does not appear therefrom that they are sued as ” executor, and executrix. The words are, therefore, merely descriptio persones and may be disregarded as surplusage. (United Press v. Abell Co., 73 App. Div. 240, 243; Litchfield, v. Flint, 104 N. Y. 543; Stilwell v. Carpenter, 2 Abb. N. C. 238; S. C., 62 N. Y. 639; Beers v. Shannon, 73 id. 292; Merritt v. Seaman, 6 id. 168.) In order to determine whether the defendants are sued in their representative capacity, the title, allegations and demand are to be considered as a whole. (First National Bank v. Shuler, 153 N. Y. 163, 173.) The suit is not founded on an obligation of the testator. It is based on an executory contract made by his executors, although authorized by the will. They are, therefore, only liable individually. (O'Brien v. Jackson, 167 N. Y. 31; Buckland v. Gallup, 105 id. 453.) There is nothing in the demand to indicate that the plaintiffs seek to hold the defendants in their representative capacity. The demand is merely for judgment against the defendants. Nor do we find anything in .the allegations of the complaint indicating an intention to hold the defendants in their representative capacity. It was proper to allege that defendants were executors and necessary to allege that they made the lease in that capacity in order to.identify the instrument upon which their liability depended and establish a cause of action against them individually. -The court, therefore, properly ruled that the action is against the defendants individually.

The judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; O’Brien, "J., dissented.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.- ■  