
    Jacob Podalsky and Hyman Fabricant, Respondents, v. John B. Ireland, Appellant.
    First Department,
    March 11, 1910.
    Landlord and tenant — facts not showing refusal to give possession— measure of damages.
    Mere proof that a lessee found the door of the demised premises locked on the date he was entitled'to possession under his lease, and the fact that he had been previously told by a stranger that he could not get possession, does not establish a breach of the lessor’s covenant to give possession.
    While the lessor is bound to give possession, he is not obliged physically to put the lessee in possession.
    The measure of damages where a lessor fails to give possession is the difference between the rent reserved and the rental value of the premises, together with such necessary expenses incurred by the lessee in preparing for occupation as were within the contemplation of the parties. There can be no recovery for sums paid by the lessee for electric light during the term, although the lease required the lessor to furnish such light free of charge.
    
      Appeal by the defendant, John B. Ireland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 30.th day of January, 1909, upon the verdict of a. jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 3d day of February, 1909, denying the défendant’s motion for a new; trial made upon the minutes in an action brought to recover damages for a failure of the defendant as lessor to .give the plaintiffs possession of certain premises which it is claimed the plaintiffs leased from the defendant for the term of three years from the 1st day of May, 1905. '
    The agreemént of lease was entered into between the plaintiffs and the defendant’s son, acting as agent for the defendant under a written power of attorney which gave authority to lease fór a period of two years only. There is evidence,, however, tending to show a general agency. . The lease provided for the making- by the lessor of certain alterations ; that the demised premises should be ready for occupancy on April 15, 1905, and that the lessees should have the privilege of occupying the same from that date until the 1st of May, 1905, free-of charge. The only evidence to show a breach by the defendant was the testimony of one of the plaintiffs to the effect that on April thirteenth the premises were fitted up for cold storage (that was evidently the situation when the lease was made); that on the first of May he went to take possession and found the door locked, and that a day or two before that, he had had a conversation with a gentleman, not named, who told him that he could not get ' the place. The lease provided that the defendant should furnish free electric current for lighting the premises. The plaintiffs were allowed to prove the sum paid by them for electric lighting during the three years following May 1, 1905, and that sum was included in the judgment.
    
      Isaac Josejyhson, for the appellant.
    
      Max D. Sieuer, for the respondents.
   Miller, J.:

We shall assume that there was sufficient evidence of the general agency of the defendant’s son, and that the agreement of lease was binding upon the defendant; but there is no evidence whatever to show a breach of that agreement by the defendant. By it the defendant agreed to have the premises ready for occupancy on the fifteenth' of April, but there is no evidence whatever that he did not perform that agreement. The mere fact that the plaintiffs found the door locked on the first of May does not prove that they were kept out of possession by any act of the defendant. Of course, the defendant was obliged to perform his covenants, and if he failed to have the premises ready for occupancy as he agreed, he would doubtless • be liable for the damages caused by the breach. While he was bound to give the plaintiffs the right to possession, he was not obliged physically to put them in possession. (Smith v. Barber, 96 App. Div. 236; Trull v. Granger, 8 N. Y. 115.) What some stranger may have said to the plaintiffs was not evidence against the defendant.

Moreover, the plaintiffs were only entitled to recover the difference between the rent reserved in the lease and the rental value of the premises, and' any necessary expenses incurred in preparing for occupation of the premises which were within the contemplation of the parties. (Friedland v. Myers, 139 N. Y. 432.) Of course, rental value would have to be determined with reference to all of the privileges which the lessee was to enjoy, but there was no basis whatever for allowing a recovery for what the plaintiffs actually paid for electric lights during the period covered by the lease.

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

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

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