
    (69 Hun, 140.)
    ROSE et al. v. BUTLER.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    1. Action against Landlord—Breach op Covenant to Repair—Negligence op Tenants.
    In an action against a landlord for breach of a covenant to repair, whereby plaintiffs’ water-color designs were damaged by rain, where it appears that plaintiffs knew the condition of the roof, and left their designs in a place where they had reason to believe the rain would beat in during a storm, they cannot recover for the loss.
    2. Excessive Damages.
    In an action against a landlord for damages to property by reason of a breach of covenant to repair, where it appears that, after plaintiffs knew the full extent of their damages, they fixed the amount, in a letter to defendant, at $400, a verdict for $765 is excessive.
    Appeal from circuit court, Westchester county.
    Action by Arthur M. Rose and William R. Rose against Jacob D. Butler for a breach of a covenant in a lease. From a judgment entered on a verdict for plaintiffs for $765, and from an order denying a new trial, defendant appeals.
    Reversed.
    The following paragraphs are from plaintiffs’ complaint: “(3) That in and by said lease, among other things, the defendant covenanted and agreed as. follows: ‘If said premises shall be so slightly injured by fire or the elements as not to be rendered unfit for occupancy, then the said lessor agrees that the same shall be repaired with all reasonable promptitude.’ ” “(5) That on or about the 21st day of January, 1892, the said building, and the rooms in said building covered by the above-mentioned lease, were injured by fire to such an extent that the said rooms were exposed to the elements, although the rooms were not rendered absolutely unfit for occupancy, within the provision of the above-quoted covenant of said lease, and these plaintiffs did immediately notify the defendant of such injury, and requested him to repair the same at once according to the provisions of the covenant by him made, and contained in said lease, as above mentioned. (6) That the defendant did then refuse to repair said rooms and premises pursuant to the terms of his said covenant, and did willfully and wrongfully break, on his part, the terms of his said covenant; and by reason thereof, without any negligence on the part of these plaintiffs, and dining the time that defendant refused and neglected to perform on his part the covenant above mentioned, by reason of the injured condition of the said premises caused by the fire above mentioned, the rain and elements beat into said premises, and ruined and destroyed one all-over curtain design, which was worth the sum of one hundred and fifty dollars, ($150,) and another allover curtain, which was worth the sum of one hundred and twenty-five dollars, ($125,) and one curtain valance, which was worth the sum of ninety dollars, ($90,) and one upholstery design, which was worth the sum of one hundred and seventy-five dollars, ($175,) and two sketches, silk, which were worth the 'sum of seventy dollars, ($70,) and did furthermore damage the plaintiffs’ decorations in said offices, to plaintiffs’ loss in the sum of seventy-five dollars, ($75,) and did injure designs which plaintiffs were then repairing for George Brooks & Sons, which required plaintiffs to expend thereon, in repairing the same, labor and material of the value of fifty dollars, ($50,) and did injure designs which plaintiffs were preparing for W. H. Judson to such an extent that plaintiffs were obliged to and did expend in labor and material, in repairing and renewing the same, the sum of one hundred and twenty-five dollars, ($125,) and plaintiffs further allege that by reason of defendant’s failure to repair the injury to the said premises above mentioned with reasonable promptitude, pursuant to the terms of said covenant above mentioned, the workmen and draughtsmen employed by plaintiffs in said offices were hindered and delayed in théir work to such an extent that, although plaintiffs were obliged to pay the said workmen and draughtsmen their full wages, by reason of the hindrance and delay above mentioned, prior to the commencement of this action, plaintiffs have lost, in wages so paid, the sum of ($450,) and these plaintiffs further allege that by reason of the failure of the defendant to perform on his part the terms of the covenant above mentioned, and without any fault on the part of the plaintiffs, furniture belonging to these plaintiffs was damaged by the elements to plaintiffs’ loss in the sum of fifty dollars, ($50.) Wherefore, plaintiffs demand judgment against the defendant for the sum of thirteen hundred and sixty dollars, ($1,360.00,) with interest, besides the costs and disbursements of this action.”
    Defendant denied nearly all the allegations of the complaint, and set up the following: “(9) Further answering, and as a separate defense to the cause of action alleged in the complaint, defendant avers: First, that in and by the terms of the lease by this defendant to the plaintiffs, mentioned in the complaint, it was, among other things, agreed by plaintiffs with defendant that this defendant should not be hable to the plaintiffs for any damage to any property at any time in the rooms leased by defendant to plaintiffs, from water, rain, or snow which might enter or leak into said rooms from any place or quarter; second, that whatever of the destruction, damage, and injury alleged in paragraph 6 of said complaint to have occurred to the respective articles therein mentioned, or as having been suffered by plaintiffs at the times therein mentioned, actually occurred or was suffered, happened to property then in said rooms, as defendant is informed and believes; third, that, as defendant is informed and believes, such destruction, damage, and injury, whatever the nature or extent thereof, was due to or occurred and was suffered in consequence of water, rain, or snow leaking into or entering said rooms. (10) Further answering, and as a separate defense, defendant avers, on information and belief, that whatever of the destruction, damage, or injury specified in said paragraph 6 of said complaint actually occurred or was suffered at the time or times therein mentioned was caused by the negligence of plaintiffs, or their negligence contributed thereto.”
    The eighth clause of the lease provides that ‘‘said lessor shall not be liable for any damage to any property at any time in said premises, from the Groton or other water, rain, or snow which may leak into, issue, or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works of the same, or from any other place or quarter.”
    Plaintiffs’ exhibit No. 2 is as follows:
    “Feb. 23, 1892.
    “Mr. J. D. Butler—Dear Sir: We write to notify you that designs and sketches in our rooms to the amount of four hundred dollars have been ruined by the storm that occurred Saturday, the 20th, and Sunday, the 21st; also the decorations on our walls injured to the amount of seventy-five dollars,— for which we will look to you for compensation, as we have repeatedly notified you that, in the event of storm, our rooms would be ruined.
    ‘Yours, truly, A. M. Rose & Go.”
    Argued before BARNARD, P. J., and PRATT, J.
    Close & Robertson, for appellant.
    Rudd, Hunt & Wilder, for respondents.
   PBATT, J.

This is an appeal from a judgment entered upon a verdict of a jury, and from a motion denying a new trial upon the minutes. There seems to have been no error committed upon the trial, except in the instructions as to the rule of damages. We think the rule which the court was requested to charge, to wit, “that, if the plaintiffs are entitled to recover at all, they can only recover the difference in value of the use of the premises as they were, and as they would have been if the defendant had kept his agreement,” was the correct one, and should have been charged. It is very clear that the verdict is excessive, even assuming that the rule charged is true. It seems that after the storm, and after plaintiffs knew the full extent of the damage they had suffered, they fixed the amount of their damages at about $400, and, without some explanation upon their part, they ought to have been confined to that sum. Again, the evidence is very unsatisfactory as to the elements of damage that should be taken into consideration, but it is unnecessary to discuss that part of the case.

It is plain that plaintiffs knew as well if not better than the defendant the condition of the roof after the fire, and the hazard of leaving their designs in a position to be damaged in case of a recurrence of a storm. If they elected to leave their property, which they knew water would damage, in a place where they had reason to believe that the rain would beat in case of a storm, they did it at their own risk, and must suffer the consequences. Cook v. Soule, 56 N. Y. 423. Such injuries as are here complained of could not reasonably have been contemplated by the parties when the lease was made. Again, it may be said that under the eighth clause of the lease the plaintiffs took the risk of all damage from water. Judgment reversed, and new trial ordered; costs to abide the event.  