
    Owen Treanor, Respondent, v. The New York Breweries Company, Limited, Appellant.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Damages — Expenses of aggrieved person—Expenses caused by reliance on contract.
    Where plaintiff purchased the good will of a saloon and leased the premises upon the agreement of a brewing company to loan him a certain amount to fit up the place if he would purchase beer made by it, and the' brewing company, on request, refuses to make the loan as agreed, the plaintiff, in an action against the brewing company, is entitled to recover the amount paid for the good will and the amount paid to secure a release of his liability under the lease; but defendant is not chargeable with the rent paid by plaintiff while in occupation of the premises.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiff after a trial before the court and jury, and from an order denying a motion for a new trial.
    Guggenheimer, TJntermyer & Marshall (Abraham Benedict, of counsel), for appellant.
    Jacob ¡Newman (Edwin F. Stern, of counsel), for respondent.
   Dowling, J.

From testimony, which the jury had a right to believe, it was shown in this case that the plaintiff, being desirous .of embarking in the saloon business and having ■ ascertained that he could rent a desirable location for the term of ten years, provided he would expend $7,000 in furnishing the place with certain fixtures, and that the good will could be purchased for the sum of $250, made an agreement with the defendant through its general manager, one Tighe, who agreed to loan plaintiff said sum of $7,000, taking a mortgage upon the lease and fixtures, the plaintiff a'greeing to purchase beer made by the defendant. Thereupon the plaintiff made the lease, paid the $250 to the former lessee for the good will of the business, paid the sum of $500 for two months’ rent, • and took possession of the premises which he occupied for that time.’ In the meantime, after several requests to do so, the defendant’s manager refused to make any loan to plaintiff. The plaintiff, thereupon, secured a release from his landlords upon payment to them of the sum of $500, and brought this action for breach of contract and recovered a judgment for the sum of $1,250, made up as follows: $500 for the two months’ rent paid, $250 for the good will of the business and $500 paid for the release. The appellant claims, first, that there was no consideration for the contract; second, that Tighe had no authority to make the contract; third, that plaintiff can recover only nominal damages; fourth, that the judgment is against the weight of evidence, and, fifth, that the items of damage are not recoverable. Without a lengthy discussion of the merits of the several objections raised by the appellant, it is sufficient to say that there is ample testimony in the case to sustain a judgment against the defendant; but we think that, as to the item of $500 paid for the rent for two months, the defendant is not properly chargeable therewith. The plaintiff occupied the premises for the two months for which he paid rent. As to whether the usable value of the premises in the condition the plaintiff took them was less, equal to, or more than the amount of rent paid therefor by him, there is no evidence. Presumably, in the absence of evidence to the contrary, the premises were worth the rent paid. It is true it appears that, after he had been in the premises for two months, he found that, unless the proposed repairs were made, he could not successfully continue the -business. Nevertheless, it does not appear that he met with any loss during the two months he remained in occupancy.

Unless the plaintiff will stipulate to reduce the amount of recovery to the sum of $750, the judgment will be reversed and a new trial ordered, with costs to appellant to abide the event. If such stipulation is made, judgment affirmed, as modified, without costs to either party.

Gildebsleeve and Dugbo, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulate to reduce amount of recovery to $750. If such stipulation is made, judgment affirmed, as modified, without costs to either party.  