
    John H. McFadden, Respondent, v. Thompson-Starrett Company, Appellant.
    First Department,
    December 7, 1906.
    .Negligence — injury to dwelling by negligent building operations on adjoining premises ■—items of damage recoverable by lessee.
    A lessee whose dwelling has been rendered uninhabitable by the negligence of a contractor constructing an adjoining building may recover as damages in addition to extra.cost of moving and damages to furniture and carpets:
    (1) The increase in the plaintiff’s reasonable living expenses when compelled to move his family into an hotel, to be computed up to the time of the expiration of the lease. The damages are not the same as upon eviction as the plaintiff remains liable for rent.
    (2) The cost of storing his furniture up to the expiration of the lease.
    (3) For the discomfort caused plaintiff’s family.
    McLaughlin, J-., dissented, with opinion.
    Appeal "by the defendant, Thompson-Starrett Company, from a! judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of New York on the 15th day of March, 1906, upon the verdict of a jury, and also from ari order entered in said clerk’s office on the 23d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Albert B. Boardman, for the appellant.
    
      Eugene Lamb Richards, Jr. [Hatch & McCook, attorneys], for the respondent.
   Scott, J.:

The defendant was the general contractor for the erection of the St. Regis Hotel at the corner of Fifty-fifth street an cl Fifth avenue in New York city. Plaintiff was the lessee and occupant of the adjoining house on Fifty-fifth street. The house was an expensive one, renting for $6,000 ]ier annum. The plaintiff had furnished it handsomely and had expended a considerable sum upon its decoration, and lived in a style and after a standard commensurate with the value and character of the house. The defendant conducted its building operations so negligently as to damage plaintiff’s property contained in' the house, and to so-,injure the house itself as to render it uninhabitable and force plaintiff’s family to vacate the premises. ¡No question is made upon this appeal as to defendant’s negligence, or as to the consequences thereof, the only question raised being as to-the measure of damages adopted by the trial court. The court submitted to'the jury, as elements of damage to be considered: (!)• The injury wrought to plaintiff’s carpets and furniture. This item is .not questioned. (2) The extra cost of inovihgthe furniture over what it would have been in October, when! plaintiff’s lease would, by its terms, expire. This extra cost was estimated by the person -who moved the furniture at $300. ¡N"o evidence to the com traty was offered, and this item is not seriously questioned. ' The items of damage which are called in question are (3) the cost of. storing the furniture from February, when plaintiff moved out of ' the house, until October first, when 'Ms lease expired. (4) The difference in plaintiff’s living expenses after he ivas forced to move out of the house until lie and his family left the city, a period of sixty-three days, and (5) the loss of comfort suffered, by plaintiff, and his family in consequence "of defendant’s negligent'acts. . When the house became uninhabitable plaintiff himself was "abroad, the house being occupied by his wife, family.and servants.. Plaintiff’s wife, ■ with her family and two servants, went to-the hotel in ¡New York city to which they had been accustomed to go Whenever they went to an hotel, and took a suite of rooms. She .testified that she lived there quietly and went to- no excessive or unusual expensej, and there Was no evidence that, in doing what she did, plaintiff’s wife committed any extravagances or lived oil any more elaborate scále than she had been accustomed to do in the house out of- which she had been driven. Testimony was offered, without contradiction, showing the cost of living at the hotel for the sixty-three days during which plaintiff’s.family lived there and the cost of living in the Fifty-fifth street house, and it was the difference between these amounts which the jury was permitted to consider. Defendant njów claims that plaintiff should have been limited "to ■ the damage allowed in cases .of technical eviction, and cites authorities to the effect that the dam-" age recoverable in such Cases is the difference between the rent reserved in the lease and the rental value of the premises. There was no eviction, however,' and the rule of damages invoked by defendant is inapplicable. An eviction can be effected only by a lmdlord, or a person holding a paramount title. Here, notwithstanding the plaintiff had been driven out of the house by the wrongful act of the defendant, he still remained the tenant of the premises and liable to his landlord for the rent. The defendant was guilty of a tort. For that it is sued, and plaintiff is entitled to recover the proximate damages resulting therefrom. As the plaintiff was wrongfully driven out of his house, he was entitled to procure another place in which to live commensurate in point of comfort and standard of living with the house from which he had been driven. He was not bound to seek out and find another house. That would have been difficult and very likely impossible at the season of the year when the necessity arose and for the-short period for which he required shelter. He was entitled to take his family to the most available place to live in view of all the circumstances, and, in the absence-of either proof or suggestion of extravagances, we are of opinion that he was justified in resorting to an hotel. As to the cost of storing his furniture the plaintiff was clearly entitled to recover. One of the uses to which he was entitled to put his house was to keep his furniture therein, and when, by defendant’s fault, it became impossible to keep the furniture there without running the risk of its destruction, it was proper to find another safe storage place for it. As to permitting a recovery for the discomfort undergone by plaintiff’s family, we think that no' error was. made. The action is similar to one for damages resulting from the maintenance of a nuisance, and in.such cases it has frequently been held that the jury may consider the discomfort to which a plaintiff and his family have been put. The verdict was for a less sum than might well have been found for the other items of damage, and it is b.y no means clear that the jury included anything for discomfort.

The judgment and order must be affirmed, with costs.

Patterson, Ingeaham and Houghton, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I dissent on the ground that the case was,tried under an erroneous theory and submitted to the jury under erroneous instructions as to ‘the measure of damage! Among tlw elements of damage submitted to the-jury to be considered by them was (4) The difference in plaintiff’s living expenses after lie was forced to .move out of the house until he and liis' family left the city (a period of sixty-three days), and (2) the loss of comfort suffered by plaintiff and his family in consequence of being compelled to move. In receiving evidence as to these two items and .permitting the jury to award damages therefor I think the court erred and the errors are presented by appropriate objection and exception.

The case is analogous, so ■ far as damages are concerned; to an evicted tenant, and the proper measure of damage, as-it seems to me, is • the difference between the value of the lease for the unexpired term and the stipulated rent, as well as the. cost of moving from the house at the time it became untenantable in excess of what it would have been at the expiration of the lease. An evicted' tenant cannot recover the increased rent which he may be Compelled to pay for other premises ■ hired for the purpose of doing businéss therein (Chatterton v. Fox, 5 Duer, 64), and for a failure to deliver possession the damages recoverable by a tenant are governed by the sam'e rule, the excess of the actual rental value over the rent reserved in .the lease. (Eastman v. Mayor, 152 N. Y. 468; Dodds v. Hakes, 114 id. 260.) It makes no difference whether the action be on contract or in tort, the measure of. dam age is the same. (Trull v. Granger, 8 N. Y. 115.)

" In Gourdier v. Gormadle (2. E. D. Smith, 200) a tenant brought an action against, one other than his lessor to recover damages caused by the blasting of rock on the'lot adjoining his premises. It was held that in so far as he was deprived of the use of his house he was entitled to the value of such use during the interruption and in addition the expense incurred in removing the rock thrown upon the lot and the injury to his house caused thereby.

The judgment and order appealed from, therefore, should be reversed and si new trial ordered, with costs to appellant to abide event.

Judgment and order affirmed, with costs. Order filed.  