
    John F. Buhrmaster, Resp’t, v. Nelson Ainsworth, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 3, 1895.)
    
    Landlord and tenant—Eviction—Damases.
    Where a tenant brings an action against a landlord for entering into a part of the demised premises and wrongfully placing therein property of his own, which the tenant will be compelled to remove, the tenant, if he does not seek to recover the rental value of the premises, may be allowed what it will necessarily cost him to remove the property so wrongfully placed on his premises by the landlord. So held, where a landlord wrongfully entered on the leased premises and filled with ice an ice house which . the tenant was preparing to fill; and in such case, it Was held that the tenant could not recover either for services in procuring men to fill the ice house and in notifying them, after the eviction, not to come, or for the difference in value at the time of the eviction and at the time of the trial, . of ice sufficient to fill the house.
    Appeal from a judgment of the county court, modifying a judgment rendered by a justice of the peace in favor of plaintiff by reducing the amount of damages.
    Frank Cooper, for app’lt;
    Jacob W. Clute, for res’pt.
   PUTNAM, J.

An erroneous rule of damages was adopted in the lower (justice’s) court. Plaintiff’s action was to recover for the wrongful entry of defendant, his landlord, on the 12th of January, 1895, on premises leased to him, taking possession of an ice house the'reon, and filling it with ice. The action was commenced on the 7th day of February thereafter. Plaintiff produced evidence showing that when evicted he was about.to fill "the ice house, and he recovered $3 for services in procuring men to do the work and notifying them not to come after his eviction. Pie was also allowed $5 for the difference in value of ice sufficient to fill the building at the time he was so dispossessed and the time of the trial; and $10, the estimated cost of removing the ice placed in the liouse by defendant. It did not appear that plaintiff had removed such ice or replaced it. It is well settled that damages which can be allowed in a case like this is limited to such as may be supposed to have entered into the contemplation of the parties in making the contract, and such as flow naturally from the violation of the agreement, and are certain in their nature. Speculative profits and accidental and consequential losses are not recoverable. Under the rule so stated, it does not require a discussion to show that it was error to allow the first two items, above specified, as damages. Ordinarily, the damage for an eviction is the rental value of the premises, less the rent reserved. Dodds v. Hakes, 114 N. Y. 261-265; 23 St. Rep. 192; Drucker v. Simon, 4 Daly, 53; Chatterton v. Fox, 5 Duer, 64; Giles v. O’Toole, 4 Barb. 261. But in such a case as this, where a tenant brings an action against his landlord for entering into a part of the demised premises, and wrongfully placing therein property of his own, which the tenant will be compelled to remove,—in fact, for a temporary eviction or trespass,—if such tenant does not seek to recover the rental value of the premises, I see no objection to his being allowed what it will necessarily cost him to remove the property so wrongfully placed on the premises by the landlord. In such a case he elects to retain the premises and recover damages as for a trespass. It followb that the item of $10 allowed plaintiff can be sustained.

The judgment should be modified by striking out the two items of $3 and $5, and, as so modified, affirmed, without costs to either party.

MAYHAM, P. J., concure.

HERRICK, J.

(dissenting). I think the item of $10 should also be struck out. There is nothing in the case to show that siich expense will be necessarily, or evenly properly, incurred. And the judgment should be modified, with costs of this appeal to appellant.  