
    Morris Ettinger and William Ettinger, Doing Business Under the Firm Name and Style of Ettinger Brothers, Respondents, v. Christian Schuck & Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Lease — action for rent — landlord and tenant — agreement for lease at some future time to be determined.
    An action for rent may not be predicated on an agreement for a lease at some future time to be determined at the will of the intending, lessor.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs after a trial by the court without a jury. .
    Gustave Frey (E. D. Miner, of counsel), for appellant.
    Max Shlivek, for respondents.
   Page, J.

This action was brought to recover rent for three and one-half months that was alleged to be due under and by virtue of a lease. The documents that the plaintiffs relied upon to prove, and which the court below has held to constitute, a lease are as follows: (both on the letter heads of Ettinger Bros, and dated Bronx, N. Y., April 1, 1912.) “We, Ettinger Bros, agree to give the unexpired term of our lease to C. Schuck & Co. as soon as we are ready to move. The term of the lease calls for one year from May 1st, 1912, for the monthly rent of $75.00. Deposit 10.00 for ten Dollars for the binding of the contract.” (Signed) Morris Ettinger; and, “ I, Christian Schnck agree to take the lease for store 533, Third Ave. from Ettinger Bros, as soon as they are ready to leave.” (Signed) Christian Schnck.

On August 5,1912, the defendant wrote to the plaintiffs Owing to the unsatisfactory reading of the lease which the landlord has sent us we have decided not to take the store.” On August ninth, the plaintiffs ’ attorney wrote that the store would be ready for them on September first and notifying them that unless they performed their agreement of April first his clients would pay the rent and hold defendant liable therefor. On the first business day of September the defendant tendered seventy-five dollars to the plaintiffs and demanded possession of the premises. The plaintiffs were still in possession of the premises, and told defendant’s representative that they would give possession about September fifteenth, and on September eleventh their attorney wrote that the premises were then vacant and ready for their occupancy and that the plaintiffs would hold them liable for rent for the remainder of the term of plaintiffs’ lease commencing with September 15, 1912. The defendant did not enter into possession and this action was brought.

. There never was a lease entered into between the parties nor did the relation of landlord and tenant ever exist between them. While it is true that no particular words are necessary to create a lease, yet an intention of one party to divest himself of possession, and of the other to come into it for a determinate time, must appear. In the papers put in evidence there is no intention disclosed by the plaintiffs to divest themselves of possession but they are to remain in possession until they are ready to move. If they were not ready to move during the term of their lease the defendant could not demand to be put into possession, nor would the defendant have any right of action against the plaintiffs if they did not vacate the premises. There was an entire lack of mutuality in the contract that was made. The most favorable construction that could be put on this agreement is, that it is an agreement for a lease at some future time to be determined at the will of the plaintiffs. But such an agreement vests no estate in the defendant. Although an action may be maintained for damages for the breach of an agreement to lease, an action for rent cannot be predicated thereon. The- measure of damages is the difference between the contract price, i. e. the rental specified, and the amount the plaintiff was able to realize upon the premises after the breach, and not the rent reserved. Had there been a definite time for the term to commence and the defendant entered into possession then, although the form of the agreement appeared to be merely an agreement for a lease, the taking of possession thereunder would show the intention of the parties that the agreement was to be one of lease. Such was the case of Fuest v. Craig, 107 N. Y. Supp. 638, relied upon by the learned justice below.

The judgment should be reversed, with costs to the appellant, and judgment given for the defendants, with costs.

Seabuby and Bijub, JJ., concur.

Judgment reversed, with costs to appellant, and judgment for defendants, with costs.  