
    The Federal Sign System Electric Co., Appellant, v. Norman S. Epps and Philip G. Epps, Respondents.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Bailment — Hiring and mutual benefit: Actions and defenses — Evidence and proof.
    Where a contract to install an electric sign for the tenant off leased premises provides that, upon his failure to pay the rent stipulated under said contract, plaintiff would have the right to remove the sign, and that the tenant would, thereupon, become obligated to pay in addition to the agreed rental the sum of seventy-five dollars as liquidated damages to cover the expense of installing the sign, the plaintiff, in an action to recover such damages, is entitled to show, in conformity with the allegations of its complaint, the tenant’s failure to pay the rental of the sign and its removal in consequence of such default.
    Where the record on appeal from a judgment for defendant in said action shows that the trial court evidently confused plaintiff’s claim with one that might have arisen out of another clause of the contract which provided for indemnity to plaintiff for any expense it might have been put to in case of being compelled to remove the sign on account of the failure of the tenant to secure the consent of the landlord, which he was obliged to procure under the contract relating to the sign, and plaintiff absolutely disclaimed that it removed the sign for any such reason, it should have been permitted to try the case upon its own theory.
    Appeal by the plaintiff from a judgment in favor of the defendants rendered in the Municipal Court of the city of Few York, tenth district, borough of Manhattan.
    
      David Paine, for appellant.
    "Wilford H. Smith, for respondents.
   Greenbaum, J.

This action was brought to recover the sum of seventy-five dollars as liquidated damages for breach ■of contract. The plaintiff agreed to install an electric sign on the premises leased by the defendants. The contract was in writing, one of the provisions thereof being that, in case of the lessee failing to pay the rents stipulated thereunder, the plaintiff would have the right to remove said sign and the defendants would thereupon become obligated to pay, in addition to the agreed rental, the sum of seventy-five dollars as liquidated damages to cover the company’s expense in installing the sign upon the premises.

The plaintiff attempted to prove, in conformity with the allegations in its complaint, a failure on the part' of the ■tenant to pay-the rental as provided for under the contract and the removal of the sign by it in consequence of such -default.

The record shows that the trial court evidently confused the claim of the plaintiff with one that might have arisen «out of another clause of the contract, which provided for -indemnity to the plaintiff for any expense it may have been put to in case of being compelled to remove the sign on account of the failure of the lessee to secure the consent of the landlord, which the lessee was obligated to procure under the contract.

During the course of the cross-examination of the plaintiff’s witnesses, it was attempted to be shown that the sign was removed because of the landlord’s refusal to consent to its retention. Plaintiff, however, absolutely disclaimed that it removed ,the sign for any such reason, and it should have been permitted to try the case upon its theory.

The provision for the payment of $75 was clearly one for liquidated damages and not one for a penalty. The provision of the lease affording indemnity to the plaintiff for any -expense it incurred previously to receiving notice that the ,proper permits for hanging the signs could not be obtained stands on an entirely different ground and should not be confused with the rights of the plaintiff demanded under the clause for liquidated damages.

If, after hearing the proofs pro and con, the court would have come to the conclusion that the removal of the sign was due to the act of the landlord, and not because of the nonpayment of rent under the contract by the lessee, then it would have been proper for the trial justice to have dismissed the complaint, upon the ground that the plaintiff had not established the cause of action as pleaded.

The judgment should be reversed and a new trial ordered,, with costs to the appellant to abide the event.

Scott and Giegeeich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  