
    John Neiderstein, Jr., Respondent, v. Mary B. Cusick, Individually and as Executrix, etc., of Martin Cusick, Deceased, Appellant.
    Second Department,
    May 1, 1908.
    Beal property — covenant —• specific performance — damages.
    Where a landlord makes a breach of his covenant to renew a lease, and later is unable to perform specifically, because the land has been condemned, his tenant may recover damages.
    The measure of damages is the difference between the rental value of the premises for the full term specified and the rent reserved in the lease.
    The part of the renewal term during which plaintiff had occupied as defendant’s tenant should be excluded in computing the damages, but not the time during which plaintiff occupied as tenant of the city which took the lands by eminent domain.
    Appeal by the defendant, Mary B. Cusick, individually and as executrix, etc., from a judgment of th.3 Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      William E. C. Mayer, for the appellant.
    
      Alfred J. Gilchrist [Jacob Neu with him on the brief], for the respondent.
   Jenks, J.:

The lease to the plaintiff from the defendant contained a covenant for a renewal of a term to begin immediately after April 1,

1903. The tenant sued for a specific perfoi’mance of that covenant. The defendant’s demurrer which challenged any cause of action was sustained at Special Term and in this court (83 App. Div. 36), but was reversed in the Court of Appeals. (Neiderstein v. Cusick, 178 N. Y. 543.) The defendant answered and now appeals from the judgment for the plaintiff rendered upon trial. The Special Term found that specific performance was impossible, in that the city of Hew York condemned the premises for park purposes and took title thereto on April 25, 1904.

The judgment of the Court of Appeals is the law of this case, and under it the plaintiff was entitled to a renewal beginning immediately after April 1, 1903. The plaintiff as a lessee (and such would have been his status but for the refusal of the defendant to keep her covenant) would have been entitled to compensation for the paramount eviction by the city in its exercise of the right of eminent domain. (Greater N. Y. Charter, § 980.)

The learned Special Term applied the correct rule of damages, viz., the difference between the rental value of the premises for the full term specified, namely, five years, and the rent reserved in the lease. (Trull v. Granger, 8 N. Y. 115; Dodds v. Hakes, 114 id. 265; Eastman v. Mayor, 152 id. 473; Larkin v. Misland, 100 id. 212.) But the amount of the judgment is erroneous. The court found without exception that the plaintiff remained in possession and in occupancy as the tenant, of the defendant down to April 25,

1904. Hence in determination of the amount of the damages the pei’iod of such possession and occupancy must be excluded from the five yeai’s’ term. For the plaintiff during that time enjoyed from the landlord all that he was entitled to if the renewal of the lease had been given. The court also found without exception that the plaintiff remained in occupation and possession as the tenant of the city until on or about the month of September1,1905, and it is contended that this period should likewise be excluded from the five years’ term. But the defendant in no way procured such tenancy, the fact thereof was res inter alios aeta, and such tenancy was not afforded or permitted by the city of New York in order to discharge in part the liability of the defendant. For these reasons I think that the point is not well taken. (Suth. Dam. [3d ed.] § 158; see as to the principle, Appleton v. Marx, 191 N. Y. 81.) As between the plaintiff and the defendant, any concession or grace on the part of the city should inure to the incidental benefit of the plaintiff rather than to that of the defendant, the wrongdoer. The court plainly cast the damages from the conclusion that the rental value of the premises was $2,000 a year in excess of the rent reserved. The evidence justifies this. I think, however, that it is not necessary to grant a new trial, for the data permit a certain correction. There should be deducted from the term of five years the period during which the plaintiff was in possession and in occupancy of the premises as tenant of the defendant, and the damages cast in the fashion followed by the court for the remainder of the period.

The judgment is reversed and a new trial is granted, costs to abide the event, unless within twenty days the plaintiff consent toa reduction of the judgment in accord with the opinion, in which event the judgment as so modified is affirmed, without costs. Settle the order before Mr. Justice Jenks.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff consent to a reduction of the judgment in accord with the opinion of Jenks, J., in which event the judgment as so modified is affirmed, without costs. 
      
      See Laws oí 1901, chap. 466, § 980. Since amended by Laws of 1905, chap. 899, and Laws of 1906, chap. 658.— [Rep.
     