
    Joseph Segal, Respondent, v. Hyman Ensler, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Lease — Breach — Refusal by lessee to take possession.
    A refusal by the lessee to take possession under the lease, made before the commencement of the term, is a breach of performance which authorizes the landlord "to maintain an action for the resulting damages, and in such case it is no defense that the landlord failed to give possession of the premises upon a demand made after the term commenced. ' . ■
    
      2. Same — Damages.
    In such an.action the measure of damages is the rent reserved for the term, less the payment on account and the amount received from others for use and occupation during the term.
    Appeal from a judgment for the plaintiff, rendered by the District Court in the city of Hew York for the Fifth Judicial District, in an action tried before the justice without a jury.
    Action by the lessor to recover damages, for the lessee’s breach of a contract of letting by refusal to enter into possession of the demised premises and to pay rent.
    Sol. A. Hyman, for respondent.
    Abraham D. Levy, for appellant.
   Bischoff, J.

The facts determined by the justice upon sufficient evidence are that, on March 22, 1895, the plaintiff and the defendant entered into an oral contract whereby the plaintiff agreed to let, and the defendant to take, certain apartments, at the time in the possession of another, and situated in the plaintiff’s premises, for the term of one month, commencing on the next succeeding 1st day of April, at the rental of $25, payable in advance; $5 whereof were paid at once; and that thereafter, and before, the commencement of the term, the defendant notified the plaintiff of his refusal to enter into possession of the demised apartments,, and to pay the balance of the rent as agreed. The plaintiff was awarded recovery of $20, and the judgment is assailed upon two grounds; firstly, that, inasmuch as it was undisputed that the plaintiff failed to give possession of the demised apartments upon the defendant’s demand after the commencement of the term and while the former occupant continued in possession, no recovery whatever should have been allowed; and, secondly, that an incorrect measure of the plaintiff’s damages was applied. Heither ground is well taken.

The controversy was to be determined' by the rules' of law which ordinarily prevail in the cases of contracts. The .defendant’s repudiation of the contract, though before the commencement of the term, constituted a breach of performance on his part, which' entitled the plaintiff to maintain an action forthwith for the resulting damages. Howard v. Daly, 61 N. Y. 362. The case cited was one of a contract .of service, but, in principle, it is not distinguishable' from the one at bar. Ho sound reason can be advanced why an employee should not be required to await his employer’s change of mind, while a lessor should be subject to the caprice of his lessee at the risk of being unable to let his premises to another after the time for the commencement ef the term has arrived; and the principle laid down in Howard v. Daly was applied to- the case of a vendor and vendee, where it was held that the vendee’s notice of his intention, before the time fixed-for the delivery of the goods, not to accept them, entitled the vendor to treat the contract as broken and to' maintain an action for damages for. such breach. Windmuller v. Pope, 1 Silv. Ct. App.. 550.

The measure of the plaintiff’s damages for the defendant’s breach of contract was the rent reserved for 'the term,, less the payment on account and the amount received for the use and occupation of the demised premises, during 'the term, from others. ' Gear Landl & Ten., § 12; Cleveland v. Bryant, 16 So. Car. 634. At the time of the trial in the case at bar, the term had expired. It was not shown that the plaintiff occupied the demised apartments, or "otherwise derived any advantage therefrom, during the term, and the recovery was limited to the bálance of the rent which the defendant had agreed to pay. Ho error with regard to the computation of the damages awarded, therefore, appears.. Bassett v. French, 10 Misc. Rep. 672.

Obviously, the question which the defendant’s counsel sought to raise upon the argument of this.appeal — whether, in the case of a lease of such short duration that the incoming lessee may not avail himself of existing remedies to secure possession from a third person wrongfully withholding it before the expiration of his term, there is not imported into the contract an implied undertaking on the part of the lessor to deliver such possession, contrary to the yule adjudged in the case of a lease for a longer period (Mechanics & Traders’ Fire Ins. Co. v. Scott, 2 Hilt. 550), is not presented by the facts determined upon the trial as they appear from the record. The contract of lease was terminated by the defendant’s breach before, the commencement of "the term, and should we assume the rule to be consistently with the contention of the defendant’s counsel, it remains that it was optional with the plaintiff to waive the defendant’s breach and to reinstate the contract with its original effect.

After a breach of the contract by one of the contracting parties, it is not competent to him to place the other, whose performance ■ was prevented by the breach, in default by a tender of performance. Windmuller v. Pope, supra.

The judgment should he affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  