
    ALFRED A. SPARKS, Appellant, v. GEORGE W. BASSETT, Respondent.
    
      Landlord and tenant—covenant to repair—damages for breach.
    
    Where the landlord covenants with the tenant to make certain repairs upon the demised premises on or before a specified date, the damages to the-tenant for failure to fulfil such promise are to be assessed as of the time of the breach, viz., the date specified for making said repairs; and where the tenant has suffered no’ special injury, they areTimited to such an amount as would compensate him for himself making such repairs, notwithstanding that he may have been obliged to pay a third person damages caused after said date by failure to make such repairs.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided June 2, 1883.
    Appeal by plaintiff from an order granting motion for new trial, made by defendant after verdict for plaintiff.
    The action was for damages for a breach of covenant to repair. The plaintiff had a verdict. The defendant moved, for a new trial upon the minutes of the judge. The motion was granted, and the plaintiff appeals from the order entered on this motion.
    The facts appear in the opinion.
    
      Harrison & Langdon and Abner C. Thomas, for appellant.
    —In the case at bar the testimony uncontradictedly shows that the tenant had no notice or knowledge whatever of the condition of the overflow pipe till the damage had occurred. In 'all cases, however, where -the damage has resulted from a reliance by the tenant upon the performance of an agreement to repair by the landlord, the entire amount of damage has been awarded (Walker v. Swayze, 3 Abb. Pr. 136; Beach v. Crane, 2 N. Y. 86; Myers v. Burns, 35 Id. 269; Hexter v. Knox, 63 Id. 561, reversing S. C., 7 J. & S. 109; Middlekauff v. Smith, 1 Md. 343). There is a class of cases in principle very similar to the one at bar, where a municipal corporation has been compelled to pay damages caused by a breach of duty due to it from some individual or corporation. In such a case the real delinquent is held liable for all of the damage, including the costs and expenses of the litigation (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475, and cases cited; City of Troy v. Troy & L. R. R., 49 Id. 657; City of Rochester v. Montgomery, 72 Id. 65, affi’g 9 Hun, 394).
    
      James K. Hill, Wing & Shoudy, for respondent.
    —The covenant was broken, if at all, on January 1,1881. The only damages which the plaintiff was entitled to recover for breach of the covenant, was what it would have cost him to have put the plumbing in the condition that the contract required. The injury which was received by the tenant on the ground floor by reason of the negligent use of the plumbing by the plaintiff was too remote. Ho such measure of damages was within the purview of the contract (Dorwin v. Potter, 5 Den. 306; approved in city of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 482, 483; also, in Flynn v. Hatton, 43 How. 333. See, also, Benkard v. Babcock, 2 Rob. 175, 181, 182; Arnold v. Clark, 45 Super. Ct. 256; Cook v. Soule, 56 N. Y. 423; Meyers v. Burns, 35 Id. 273; Walker v. Swayzee, 3 Abb. Pr. 138; McAdam, Landl. & T. 449, 2d ed.). In Hargous v. Albon (5 Hill, 474), Judge Cowen, illustrating this subject, says : “Dr. Franklin’s case of the defective horse-shoe nail, which resulted in the loss of the shoe, and thence in the loss of the horse, is an excellent lesson ¿n private economy, but in an action against the farrier it would not have done to have looked beyond the loss of the shoe. To have charged him with accidental consequences would have worked his ruin” (See, also, Sedgw. Dam. 79, 4th ed.).
   By the Court.—Sedgwick, Ch. J.

—The defendant, in his agreement of letting to plaintiff, covenanted to make “ the following repair in said premises before the 1st January, 1881, on the first floor; to do the work in the water-closet and wash-stand, and put the plumbing in perfect condition.” The plaintiff gave evidence to show that the defendant did not, at any time, make the repairs ; that in August of 1881, the wash-basin, by reason of some defect of plumbing, was overflowed, and the water ran down into a lower floor, occupied by another person, arid damaged some of his goods ; that the damages were claimed from the plaintiff, and that he was obliged to pay $75 to satisfy the the claim. On the trial, the plaintiff recovered the $75 so paid, and also $75 as the amount paid to his lawyer for services in settling the claim for damages.

It was agreed substantially, on the argument, that there should not have been any recovery for the amount paid by the plaintiff to his counsel for his services.

As to the damages which came from plaintiff’s payment of a claim against him, I am satisfied that the judge below, in granting a new trial, took the correct view. Such damages were not within the contemplation of the parties. The covenant was not meant to be an indemnification of the plaintiff against the consequences of an overflow during the whole of the term. The damages were to be assessed as of the time of the breach, in January 1, 1881, and would consist of compensation to the plaintiff for himself making the repairs. The rule in Dorwin v. Potter (5 Den. 306) is applicable to such a case, as is stated in thé opinion of the court in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475).

An extract from the last cited case gives light to another view of the facts. It is, “and the covenantee, in the covenant to keep in repair is within the rule in Hamilton v. McPherson (28 N. Y. 72) and, being in the care and use of the property, bound himself to take measures that the disaster of his covenantor shall be as small as may be.” This intimates that it was incumbent upon the plaintiff to put the plumbing in order himself, especially as to damages to a third person that come from his own negligence.

The order granting a new trial should be affirmed, with costs.

Truax and Ingraham, JJ., concurred.  