
    Ulrich Maurer, Respondent, v. Peter Grimm, Appellant.
    
      Agreement by a mortgagee to collect rents of the mortgaged premises and apply them on the 'mortgage—his liability for a failure to do so—proof required that the premises were tenanted — no presumption of a continuance of tenancy.
    
    The owner of an apartment house incumbered by a mortgage, on October 1, 1901, when the premises were, and for some months prior thereto had been, fully occupied and were producing a monthly rental of §119.50, permitted the mortgagee to go into possession thereof upon the latter’s agreement to collect the rents and apply them on the mortgage. The mortgagee remained in possession of the premises until June, 1902, when the mortgage was foreclosed and the property conveyed resulting in a deficiency of §36.60. The mortgagee did not apply the rents to the payment of the mortgage or pay them over to the-owner of the mortgaged premises.
    In an action brought against the mortgagee to compel him to pay over such rents, it appeared that the mortgagee had only received §143.50 in rents; that soon after he took possession of the premises he instructed the tenants not to pay any more rent, and that on this account many of the tenants refused to pay their rent to an agent appointed by the mortgagee’s attorney and that after January 1, 1902, the agent made no attempt to collect any rent.
    The rental value of the premises was admitted to be §119.50 a month, but no ■ proof was given as'to whether the premises were fully tenanted from January 1, 1902, to June 1, 1902.
    
      Held, that, in the absence of such proof, the plaintiff was not entitled to recover the full rental value of the premises during the eight months that the mort- . gageee had remained in possession; that he was entitled to recover only the amount of rent which the mortgagee had actually received;
    That no presumption arose from the fact that the premises were fully tenanted on October 1, 1901, that they continued to remain so until June 1, 1902.
    Appeal by the defendant, Peter Grimm, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of November, 1902, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      William B. Surd, Jr., and Otto F. Struse, for the appellant.
    
      John MoG. Goodale., for the respondent.
   Hooker, J.:

Plaintiff’s wife died intestate on July 2, 1901, leaving the plain•tiff and six children surviving her. At the time of her death she was the owner in fee of certain three-story frame buildings in the borough of Brooklyn, occupied for apartments and stores. The plaintiff was duly appointed administrator, and a large number of just claims were filed against the estate. At the time of her death the premises were incumbered by a mortgage of $11,500, which the defendant held and which was overdue, and taxes for several years were unpaid. The plaintiff was unable to liquidate this indebtedness and foreclosure of the mortgage was threatened. On or about October 1, 1901, while plaintiff was in possession of the premises and entitled to the rents. and: profits as tenant by the curtesy, the defendant threatened to foreclose the mortgage, and have a temporary receiver appointed to collect the rents and profits, unless the plaintiff would agree to put the defendant in possession and allow him to collect them for the purpose of applying the same towards the payment of principal, interest and taxes. This the plaintiff agreed to, and on the 1st of October, 1901, defendant went into possession for that purpose. On that day and for several months prior thereto all of the apartments had been occupied practically the whole time, and were producing a monthly rental of $119.50. Early in October, 1901, a foreclosure was commenced by this defendant, which resulted in a final sale of the premises on the 2d day of April, 1902; this sale was completed on the 6th of June, 1902, and brought enough to pay the mortgage, interest, taxes and expenses in full except the sum of $39.60, which was the amount of the deficiency. Plaintiff, however, was never credited by defendant with the amount of the rents he collected, or should have collected, between the 1st of October, 1901, and the 6th of June, 1902, and he brought this action to recover the sum of $956, claiming that during the eight months from the 1st of October, 1901, to the 1st of June, 1902, the defendant either had or should have collected that amount of money. It was admitted on the trial that the rental value was $119.50 per month. The jury rendered a verdict for $973, upon which judgment was entered; and from the judgment and order denying a motion for a new trial defendant appeals.

At the end of the plaintiff’s case the defendant moved to dismiss the complaint except as to the actual rents shown to have been collected, and stated that as to those amounts he was willing that a verdict be directed against him. This motion was denied and he excepted. At the close of the whole case the motion was renewed and it was denied, and the defendant again excepted.

The proofs show that the defendant employed an attorney and he, in turn, a collector to obtain the rents, and that there was paid over to him not to exceed $143.50. The plaintiff introduced evidence tending to show that soon after the first of October the defendant went upon the premises and personally told many of the tenants to pay no more rent. What his object was in doing this does not appear, but there is abundant evidence to support the conclusion of the jury that such was defendant’s conduct, and it appears that this action of the defendant influenced many of the tenants in their refusal. So difficult had it become to collect the rents by reason of this attitude of most of the tenants that defendant’s agent admit that after the 1st of January, 1902, they made no further efforts to collect rents. Prior to the first ■ of October, it appears from the'evidence, the tenants were in the habit of paying their rent without question to the agent of the plaintiff and prior to his wife’s death to her agent.

The court charged the jury that the defendant was the plaintiff’s agent in collecting these rents and that he was- bound to act in good faith towards him,, and use reasonable skill and diligence to collect the rents, and further charged that if the defendant Grimm did not use reasonable diligence in collecting these rents, or. if he said to the tenants, “Do not pay .the'rent,” then’ plaintiff is entitled to collect the full amount. To-the latter portion of the charge defendí ant excepted. There was -no proof in the case as to the number of tenants in the apartments after the 1st of January, 1902. The verdict of the jury was based upon the assumption that the premises were fully tenanted during the whole period of time during 1902.

• We are of opinion that the judgment cannot stand. The measure of damages was what the plaintiff lost by reason of the actionable conduct of the defendant, and no presumption is to be indulged in in plaintiff’s favor from the fact'that the premises were fully-tenanted on the first- of October, that they remained so until the first of June. Without proof of the number of tenants in the building during the period from January 1 to June 1, 1902, there was nothing upon which the verdict of the jury inight be predicated.

It has been held that in an action for conversion of promissory notes or negotiable instruments, the face value thereof is primafaoie proof of plaintiff’s damage (Booth v. Powers, 56 N. Y. 22; Western Railroad Co. v. Bayne, 75 id. 1; Blumenthal v. Lewy, 82 App. Div. 535; 81 N. Y. Supp. 528); but the rule is different in relation to other classes of personal' property. Even as to corporate stock, which approaches the character of bills and notes, it has been held that, in the absence of proof as to value, it is-to be presumed- that it has little or no valúe.- (Griggs v. Day, 158 N. Y. 1.) If, in actions for the conversion of the stock of corporations, the par value of the stock will not be taken aprima facie evidence of value, much less in an action against an agent for his failure of skill' and care in collecting rents, will proof' of the rental value of the premises be. taken to raise a presumption .as to the extent of the-plaintiff’s damages? The burden of proof as to the measure of damages as well as to other issues rests with the plaintiff and he cannot meet the requirements of the rule in the absence of legal-evidence.

It was incumbent upon the plaintiff to show what and how many tenants were in possession of the apartments, whose rents the defendant failed to collect; between the months of January and June, 1902, plaintiff’s proof in this respect failed. We think, therefore, that the judgment was without legal evidence to support it, and it must be reversed and a new trial ordered, unless the respondent stipulates to reduce the judgment to the sum of $143.50 and interest since the date of the judgment, and costs, with a proportionate reduction in the allowance, in which case the judgment as modified is affirmed, without costs.

Goodrich, P. J., Bartlett,Woodward and Jerks, JJ., concurred.

Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery to the sum of $143.50 and interest since the date of the judgment and costs, and extra allowance proportionately, in which case the judgment as modified is affirmed, without costs of this appeal to either party.  