
    Louis Goldstein, Appellant, v. Aaron Asen, Respondent.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Landlord and tenant — Eviction — Rule of damages — Evidence — Erroneous charge to jury — New trial.
    Where, in an action for damages for an eviction from premises leased to be used as a boarding and livery stable, the evidence shows that the landlord, after the tenant had gone into possession, closed four windows with wooden boards covered with galvanized tin so that the basement became useless as a stable, making it necessary for plaintiff to abandon the premises, which he did, he is entitled to recover the value of the unexpired term of the lease at the time of the eviction over and above the rent reserved, and evidence merely tending to show the effect upon the rental value caused by the boarding up of the windows, is inadmissible, and where under the instructions to the jury the damages are made to so depend, the defendant is entitled to have a verdict for plaintiff set aside and a new trial granted.
    A holding by the trial justice, on setting aside the verdict, that the issue of eviction had been adjudicated in a previous action for rent due before the eviction in the present action took place, held to have been erroneous.
    Appeal from an order of the City Court of the city of New York, setting aside a verdict in favor of plaintiff for the sum of $875 and granting a new trial. In granting the motion to set aside the verdict, the learned justice who presided at the trial acted upon the view that the matter was res adjudicatei, and for that reason set aside the verdict.
    A. B. Schleimer, for appellant.
    Bernstein, Horkimer & Rubenstein (Herman J. Rubenstein, of counsel), for respondent.
   Davis, J.

The action was brought to recover damages for an eviction -from premises 126 Broome street, New York city. The plaintiffs assignor became the tenant on the basement and ground floor on the premises in question under a lease executed by the defendant for a term of three years, from January 13, 1902, at the rate of $1,200 a year, payable in equal monthly payments in advance on the fifteenth of each month. The premises were to he used as a hoarding and livery stable. There were four windows in the stable through which alone the plaintiff claimed the horses received light and air. On the trial the plaintiff offered evidence to show that on the 15th of March, 1902, in the night, the defendant, or others acting in concert with him, closed these four windows with wooden boards covered with galvanized tin, so that the basement became useless as a stable and made it necessary for the plaintiff finally to abandon the premises, which he did on May 2, 1902. It thus appears that the eviction, if any, took place on the 2d of May, 1902.

The learned justice set aside the verdict and granted the new trial on the ground that the question of this eviction was within the issues presented in a Municipal Court action brought in April, 1902, by this defendant against the plaintiff’s assignor for the rent of these premises falling due under the terms of the lease on April 15, 1902. There was a verified answer in that action, setting up the fact of the boarding up of the windows by the lessor, but there was no allegation that the lessee had abandoned the premises, the fact being that at the time of the filing of the answer he was still in possession and occupancy of the premises. Judgment in said Municipal Court action was taken by default against the lessee on May 12, 1902.

The claim of eviction relied on in the case at bar was' not set up in the Municipal Court action, which was brought to recover rent due April 15, 1902. Indeed it could not have been set up there, for the reason that the eviction did not occur, if at all, until May 2, 1902, when the lessee abandoned the premises. The cause of action set forth in the Municipal Court complaint accrued April 15, 1902. The eviction pleaded in the case at bar did not take place until May 2, 1902. , Obviously then, this eviction could not have been litigated in an action for rent due on April 15, 1902. Koehler v. Scheider, 15 Daly, 198; Thomson-Houston E. Co. v. Durant Land I. Co., 144 N. Y. 34, 44.

The learned justice was, therefore, in error in holding that the issue of eviction in the case at bar had been adjudicated in the Municipal Oourt action and was a bar to plaintiff’s recovery here. But there is a reason apparent on the record which will support the order' setting aside the verdict and granting the new trial notwithstanding the error above referred to, and which must lead to the affirmance of that order here. On the question of damages the court charged the jury that the measure of damages is the difference between the rent stipulated in the lease and the rental value of the premises in the condition in which the landlord “ put them.” He went on to say “the rental value of the premises mentioned in the lease is $100 per month. That is what the premises were worth at the time the parties entered into the lease. Now what were the premises worth after the windows had been boarded up ? Testimony has been introduced to show that they were worth $75 a month, and the difference would be the amount of damages which the plaintiff’s assignor suffered by reason of that act.” The rule thus- laid down makes the damages depend upon the effect upon the premises of boarding up the windows. Under the authorities that element should not be considered in estimating the plaintiff’s damages. The proper rule is laid down in the case of Mack v. Patchin, 42 N. Y. 167. Under the doctrine of that case the tenant is entitled to recover as damages “the value of the unexpired term of the lease at the time of eviction over and above the rent reserved by the terms of the lease.”

There was no evidence adduced at the trial bearing upon the rental value of the unexpired term over and above the rent reserved in the lease; but on the contrary the evidence introduced tended to show merely the effect upon the rental value caused by the boarding up of the windows. This evidence was inadmissible upon the question of the measure of plaintiff’s damages.

Under the circumstances the defendant was entitled to have the verdict set aside and a new trial granted.

Order of the City Oourt is affirmed, with costs and disbursements.

Scott and MacLean, JL, concur.

Order affirmed, with costs and disbursements.  