
    Herman Hellenberg, Appellant, v. Annie Schmidt, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Landlord and tenant — expiration of lease — liability of landlord entering upon leased premises and preparing them for prospective tenant.
    Where a tenant whose lease expired on October first paid the rent for September and moved out about the middle of said month, retaining the keys, the landlord who, without the tenant’s permission, entered upon the leased premises and prepared them for a prospective tenant is liable in damages to plaintiff in the amount of rent paid by him for the period the landlord had the use of the premises during the month of September.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.
    Joseph Sapinsky (Alvin T. Sapinsky, of counsel), for appellant.
    Joseph Day Lee, for respondent.
   Lehman, J.

The plaintiff rented an apartment in the defendant’s apartment house by lease expiring on October 1,1912. He paid the entire rent for September, but moved on September seventeenth to a new apartment. At that time he moved all his property from the apartment except some small articles which his wife forgot. He locked the door of the apartment and retained the keys. On September twenty-second the plaintiff’s wife returned to the apartment to remove the forgotten articles, and found workmen in the apartment decorating it for a prospective tenant. She protested against their occupation on the ground that she was entitled to its exclusive use until October first. On September twenty-fourth she returned to the apartment and found the decorators still in possession. On September twenty-sixth the plaintiff sent a letter to the defendant demanding the repayment of the rent paid in advance for the period since the decorators were in possession. The decorators continued in possession until after October first. This testimony is undisputed ; and upon this testimony the trial justice in a thoughtful opinion decided that there was a technical trespass by the landlord, but that the landlord acted in good faith believing that the plaintiff had abandoned the premises, and that, since the plaintiff had suffered no actual loss by reason of the landlord’s occupation of unoccupied premises, he was only entitled to nominal damages. Shannon v. Burr, 1 Hilt. 39.

I cannot agree with the trial justice. The facts do . not show a case of involuntary trespass. The landlord knew or should have known that the tenant by paying the rent to October first had a right to occupy the premises till that date. Any idea that she had that the tenant had abandoned the premises must certainly have been dispelled by the protest of the tenant’s wife on September twenty-second. From that time she undoubtedly knew that she was taking from the tenant the use of premises to which the tenant was entitled, and which the tenant claimed. It is immaterial that the use was of no pecuniary value to the plaintiff. The defendant was not entitled to its use except by the permission of the tenant. To allow her without this permission to wrongfully occupy the premises upon payment merely of nominal damages “ would place a premium on trespassing, because it makes the position of the trespasser more favorable than that of the one lawfully contracting. If a man’s house is vacant with no prospect of a tenant and no intention on his part of occupying it himself, and a trespasser occupies it, he must pay as damages for the trespass the value of the use and occupation, for this would be the duty of a tenant contracting upon a quantum meruit for the use, by consent, of that which the trespasser uses without consent. In cases of involuntary trespass the damages are restricted as much as possible, but when the trespass is deliberate, intentional and continuous, they include, at least, the value of the use of the premises for the period that the owner is kept out of possession." DeCamp v. Bullard, 159 N. Y. 450.

In this case the defendant has wrongfully obtained the use of these premises for nine days, and the plaintiff paid the defendant for rent during this period the sum of thirty-two dollars and forty-nine cents, and is entitled as damages to the return of this amount.

Judgment is therefore reversed, with costs, and judgment directed for the plaintiff in the sum of thirty-two dollars and forty-nine cents and appropriate costs in the court below.

Bijur and Whitaker, JJ., concur.

Judgment reversed, with costs.  