
    Lorenz Reich, Pl’ff, v. Alice S. McCrea, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Lease—Option to subbendeb.
    A lease to defendant of certain rooms provided that she should have the privilege of giving them up' on the first of February on payment of a certain amount. Held, that she could not avail herself of the privilege after that date.
    
      3. Same—Damages.
    Where a tenant removes from premises rented by her, the landlord is under no obligation to allow another tenant of his to occupy the premises as an extinguishment of the liability to him under the lease.
    3. Same—Loss of boabd.
    The lease also provided for the board of defendant in the hotel of which the rooms formed a part. Held, that in the absence of proof that a profit would have accrued to plaintiff from continuing to supply such boardfor the unexpired period of the lease, a recovery could not be had for defendant’s failure to receive and pay for such board.
    Appeal by each party from a judgment recovered on the verdict of a jury.
    
      Abram Kling, for pl’ff; Clark Bell, for deft.
   Daniels, J.

The verdict was directed for the weekly sum of ■sixty-five dollars for the price of rooms from the last of February, 1889, to the first of May following. The defendant entered into the possession of these rooms, which were a part of the hotel known as the Cambridge, under an agreement securing to her the right of their occupancy, and board at the hotel, for the price of $117 a week. She left the hotel on the 28th of February, and did not after that date occupy the rooms or board at the hotel. It appeared by the bills which were rendered and receipted while she did occupy the rooms, that the charge made for them was the ■sum of sixty-five dollars a week. And it was for that amount accruing after she left the hotel to the termination of the period mentioned in the agreement that the verdict was directed. And each party has objected to the amount in this manner recovered in the action.

The defendant has objected to the right of the plaintiff to recover any sum exceeding in any event the sum of $200 under a clause in the agreement reserving to her the privilege of giving up the rooms on the first of February by paying the sum of $100 to the plaintiff. But a sufficient answer to this position arises upon the fact that she did not avail herself of this privilege. It was restricted to the first day of February, and no privilege was •secured to her to surrender the rooms by paying this, or any other ■sum, after that date. And it results from this circumstance that her liability could not be restricted to this sum of $100.

It was proved on behalf of the defendant that a Mrs. Andrews, who also boarded and occupied rooms at the hotel, offered to take these rooms after they were vacated by the defendant, but the plaintiff would not consent to that occupancy by her. And a ■satisfactory reason for withholding that consent arises out of the fact that the plaintiff was not legally bound to consent that Mrs. Andrews should take these rooms and cease to occupy those of which she at the time had possession. If that had been done the plaintiff, instead of the rental of the rooms in question, would have lost that of the rooms occupied by Mrs. Andrews. And for that reason no indemnity would result to him for the failure of the defendant to perform her contract if this exchange of rooms had taken place. It was for the plaintiff to determine whether he would consent to it or not. And as Mrs. Andrews was already his tenant and boarder, he was under no obligation to the defendant to allow her to take the rooms vacated by the latter as an ex-tinguishment of her liability to him under the agreement.

The court in the direction which was given for a verdict rejected the claim made by the plaintiff for the payment of the price of the defendant’s board during this interval of time. It was not proved in the case that a profit would have accrued to him from continuing to supply the defendant with board during the unexpired period of the agreement- And it was therefore to be presumed that he lost nothing on this part of the contract by the defendant leaving his hotel. His right of recovery was for damages, and that alone. Wilson v. Martin, 1 Denio, 602 ; Howard v. Daly, 61 N. Y., 362. And no damages were proved to have been sustained by him by the failure of the defendant to receive and pay for her board at the hotel. But as to the rooms the case was maintained in his favor, for they remained unoccupied from the time the defendant left the hotel until the termination of the agreement ending on the 1st of May, 1889.

The parties have stipulated that upon the appeal the court should be at liberty to make any change by way of increase or diminution in the amount of the verdict which might appear necessary to conform it to their legal rights and obligations. But as no change in the amount appears to be required, no action can be taken under this stipulation by the court. The verdict, as it was recovered only for the weekly compensation charged for the rooms, together with interest thereon, appears to have been right, and the judgment should be affirmed, without costs of the appeals to either party.

Yak Brunt, P. J., and Brady, J., concur.  