
    Frank Wolff, Respondent, v. Charles Hvass, Appellant.
    (New York Superior Court —General Term,
    March, 1895.)
    Where a landlord unlawfully enters upon leased premises to make repairs or improvements, and in so doing makes holes in the roof, through which dust and rain pass, damaging the tenant’s stock and machinery, the tenant is entitled to recover for such damage.
    No recovery can be had in such a case for damages occasioned by interference with the tenant’s business, which consist in a loss of profits, unless they are such as might naturally be expected to follow from the wrongful act and are certain.
    Appeal from judgment in favor of the plaintiff entered upon a verdict.
    
      Charles I Sehanvpcmi, for respondent.
    
      Eugene Van Schaiclc, for appellant.
   Beekman, J.

The defendant leased certain premises in the

city of Few York to the plaintiff for a term of years, it being specified in the lease that they were to be used as a “ grit or groats mill.” The plaintiff entered into possession of the property, fitted it up with machinery and other appliances essential to the transaction of his business and provided himself with some 8G0 bushels of buckwheat, out of which the product of his manufacture was made. Shortly after he commenced business operations the defendant entered upon the premises with his workmen and proceeded to construct an additional story upon the building so occupied by the plaintiff. In the course of the work holes were driven in the roof through which the dust, debris and rain passed, damaging the buckwheat and seriously injuring the machinery and interfering with the conduct of the business. The defendant claimed that he had the consent of the plaintiff for his entry upon the demised premises for the purpose above mentioned. This was denied, and a fair issue was thus presented to the jury, who by their verdict in favor of the plaintiff have characterized the entry of the defendant as unlawful. The grievances of the plaintiff were stated in his complaint in the form of three causes of action, one of which was for damages resulting from-the failure of the defendant to supply him with adequate steam power, according to a stipulation in that regard contained in the lease. This it is unnecessary to consider, as that question seems to have been excluded from the consideration of the jury by the trial judge. The other two causes of action embody statements of unlawful entry upon the property, one on the tih day of April, 1892, and the other on the 9th day of April, 1892, and of the commission on each occasion of acts of the description above mentioned resulting in damage to the plaintiff’s goods, machinery and business.

Considerable evidence was given on both sides bearing upon the question of damage to" the stock and machinery upon which it is not necessary to comment, as we do not think there was any error in the submission of that branch of the claim to thb jury. The plaintiff was entitled to recover for such injuries, and there was evidence in the case justifying the jury in awarding a substantial sum therefor. In addition to these items, the trial judge submitted to the jury another element of damage under a charge that if, by reason of the injury to the machinery from the water and debris of various kinds proceeding from the unlawful acts of the defendant, the plaintiff was prevented, from carrying on his work as he might otherwise have done, such damage as he sustained of that character which the evidence established with certainty and to their satisfaction by a fair preponderance might be awarded by them. To this charge the defendant duly excepted. The verdict of the ■ jury was for the sum of $1,500. The defendant’s counsel thereupon moved for a new trial on the judge’s minutes on all the grounds specified in section 999 of the Code of Civil Procedure, which motion was denied, and the case now comes before us on appeal' from the judgment and the order denying the above motion.

We do not think that there was any evidence in the case upon which the jury could determine the amount of damage to plaintiff from the interruption of his business, and that the exception to the charge of the trial judge on this-point was well taken.

Before the trial, a bill of particulars, was furnished by the plaintiff stating the items of his claim for damage. Among others not material to the discussion, it contained the following : “ Prevented from operating and working in said building for the space of fifty days, caused by the acts of the defendant in interfering with the premises JSTo. 511 East 18th street, and cutting off the Use of the steam, including outlays and profits during said term — $1,250.” The claim was, therefore, really for loss of profits, and the only evidence in the case bearing upon this item of loss, or in any way concerning the pecuniary damage for interference with plaintiff’s business, was given by the plaintiff, who testified that if the steam power was right he could gi’ind from 125 to 150 bushels a day, and that his profit on the product was from twenty-five to thirty cents a bushel. It is to be noticed that the court substantially withdrew from the consideration of the jury any question of damage resulting from the failure to supply steam power, and the jury was invited to estimate the damage from inability to operate the business solely as the resultant cf the unlawful acts of the défendant in connection with the trespass.

The element of profit testified to by the plaintiff was entirely too speculative and uncertain to justify any award on that ground. Loss of profits consequent upon a tort, as well as a breach of contract, are allowed provided they are such as might naturally be expected to follow from the wrongful act, and are certain both in their nature and in respect to the cause from which they proceed. Schile v. Brokhahus, 80 N. Y. 614-620; Griffin v. Colver, 16 id. 489; Marquart v. La Farge, 5 Duer, 559.

There was no such certainty in the case at bar. There was nothing in the proofs showing or tending to show that the defendant had any appreciable custom, or that he would have had any market for the 150 bushels of grain which he stated to be the grinding capacity of his mill per day, or that there was any reasonable probability that he would have been able , to earn any such profit from his business, or that he had ever made any profit from, his business at that place or elsewhere prior to the acts complained of. Under these circumstances, there was nothing before the jury from which they could, within the rules, intelligently determine and award any sum for loss of profits or other injury resulting from the interruption of the plaintiff’s business. The bill of particulars furnished by the plaintiff imposed upon him a limit of recovery for all damages submitted to the consideration of the jury other than those claimed under the item for loss of profits. That limit is the sum of $742.50. The excess of the verdict i-ver this sum may be taken to represent the conjectures of the jury -in respect to damage from -interruption of. business and the measure of the influence upon them of the erroneous charge. Under these circumstances we think that the case is. one in which the court may properly, afford to the plaintiff the • opportunity for consenting to a reduction of -the verdict. Vail v. Reynolds, 118 N. Y. 297. The plaintiff may, within twenty days, stipulate to reduce the judgment in the- sum of $757.50, and, if such stipulation is filed, the judgment so reduced will be affirmed, with costs, but if not filed the judgment should be reversed and a new trial granted, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.

Judgment reversed and new trial granted, with costs, unless plaintiff stipulates to reduce recovery, and in that event judgment, as modified, affirmed, with costs. .  