
    In the Matter of Oscar Strasburger, an Adjudged Lunatic.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    Landlord and tenant—Estate of lunatic lessee not liable for eviction CAUSED BY NON-PAYMENT OF RENT.
    Strasburger was lessee of certain premises, and sublet them for a term of years to the Messrs. Deutsch, who in turn sublet to others. Strasburger became a lunatic and his committee failing to pay the rent, the sublessees were evicted therefor. Reid, that the estate was not liable to the lunatic’s lessees for the difference between the rents reserved and the value to them of the leasehold estate, and as the committee had already paid the subtenants the rents advanced by them upon the portion of the quarter beyond their actual occifpancy, there were no mesne profits which they were liable to pay over.
    Appeal by Simon L. Deutsch and Alexander Deutsch from the order of the general term of the supreme court, first department, affirming an order of the special term upon the report of a referee disallowing the claim made by the appellants for damages against the estate of said lunatic caused by their being dispossessed of premises which he had leased to them when sane.
    Oscar Strasburger was adjudged a lunatic prior to September 17,1884. On that day Albert Strasburger was appointed committee of his estate, and qualified'and thereafter assumed to discharge his duties as such committee. January 15, 1885, Albert Strasburger having tendered his resignation, Eustace Conway was. duly appointed such committee in his place and he qualified and entered upon his duties as such committee. February 6,1882, and December 6, 1883, Oscar Strasburger by written leases leased to the appellants the first, third, fourth and fifth lofts of the building known as numbers 50, 52 Howard street and 16 Mercer street, in the city of New York for terms expiring February 1, 1886, at the annual rental of $4,500 per year.
    The appellants entered into possession of said premises under said leases, and before September 20, 1884, sublet them in several parcels by written leases to various parties at rents aggregating $7,700 per year for the entireterm of theirleases from Strasburger,. except a small parcel which was orally rented for one year at $100 rent.
    All the under tenants of the appellants were in possession of their respective parcels and all were solvent.
    Strasburger was himself the tenant of the owner or the entire building and premises aforesaid under a lease whereby he had agreed to pay his landlord $10,500 yearly rent.
    After Strasburger was adjudged a lunatic and while Albert Strasburger was committee of his estate, the rent falling due November, 1, 1884, t© the owner of the premises, was not paid. Albert Strasburger, as committee, however, demanded payment of the rent of the appellants in advance November 1, 1884, for the quarter ending February 1, 1885, and they paid it to him. Prior to Novefnber 20, 1884, the owner of the premises and landlord of Oscar Strasburger instituted summary proceedings for nonpayment of rent, and made the appellants and their under tenants parties to the proceeding. Judgmént of dispossession was rendered, and on November 20, 1884, the appellants and their under tenants were all dispossessed.
    The difference between the rent paid by the appellants and that received by them from their under tenants was $3,200 per annum, amounting from November 20, 1884, to the.end of their term, February 1, 1886, to $3,831. The rental received by the appellants from their sub-tenants was reasonable.
    The estate of the lunatic is insolvent.
    After their dispossession the special term, upon the application of the appellants and upon proceedings duly taken, directed the committee of the_lunatic to refund to the appellants such portion of the rent paid by them to him November 1,1884, in advance, as was for the unexpired portion of the quarter at the time of their dispossession, and the committee repaid the same to the appellants.
    After the last mentioned order, but before payment under it, Eustace Conway, as committee of the estate of the lunatic, pursuant to an order made by the special term upon his application, gave notice to all the creditors and persons having claims against the lunatic or his estate to present the same, etc. The appellants presented this claim. Such proceedings were had, that afterwards an order was made referring all claims to a referee, and thereupon this claim, among others, duly came to a hearing before the referee, and the facts as above stated appeared and were found.
    It also appeared by the evidence taken before the referee, that before the owner of the premises took the proceedings for dispossession, he told the appellants he would, upon payment of the rent in default, if the committee of the lunatic would consent, substitute the appellants as his tenants in place of the lunatic; that one of the appellants and the agent of the owner then visited the committee and asked him to pay the owner the rent due November 1, 1884, and refund to the appellants the rent paid by them in advance to February, 1885, and allow the appellants to assume the tenancy of the entire premises as from November 1, 1884, and conclude an agreement with the owner to that effect. The committee refused his consent, and the proceedings to dispossess followed.
    The appellants’ claim for damages was disallowed.'
    
      Joseph Fettretch, for app’lts ; Eustace Conway, for resp’ts.
    
      
       Affirming 30 St. Rep., 517.
    
   Landon, J.—The

lunacy of Strasburger did not discharge or affect his covenants in the leases to the appellants. Matter of Otis, 101 N. Y., 580. His estate is liable for whatever damages the appellants have sustained because of the breach of the covenant for quiet enjoyment in the leases given to them by him. To the extent of such damages they are general creditors, and entitled to have their claim' ascertained in order to be paid in the due course of administration. Id. But the question is, what is the measure of their damages ? The appellants claim that it is the value of the unexpired term less the rents reserved. This would be so if the breach of the covenants for quiet enjoyment resulted from the fault of Strasburger. Mack v. Patchin, 42 N. Y., 167. But the general rule is, in the absence of fault in the lessor, that the lessee can recover only such rent as he has advanced, and such mesne profits as he is liable to pay over. Id. See Walton v. Meeks, 120 N. Y., 79; 30 St. Rep., 266. The committee has already repaid the appellants the rent advaned by them upon the portion of the quarter beyond their actual occupancy, and there _ were no mesne profits which they were liable to pay over. If Strasburger had been sane and had refused" to pay the rent to his superior landlord, and thus had refused to protect his covenants with the appellants, the damages for the breach would have been measurable by the rule first stated. But he became a lunatic, and the breach followed from his misfortune, not his fault.

It is urged that his committee ought to have paid the rent and thus have protected the lunatic’s covenants. But why should the committee pay it ? The estate was insolvent and it does not appear that it was for its interest to make the payment. It might be better for the estate to incur whatever damages might result from the breach of the covenants than to expend the money necessary to protect them. The appellants could themselves have protected their possession by paying the superior landlord the rent due him. Peck v. Ingersoll, 7 N. Y., 528. The committee takes no title to the lunatic’s estate; he is a mere bailiff to take charge of it and administer it under the direction of the court. Matter of Otis, supra; People ex rel. Smith v. Commissioners of Taxes, 100 N. Y., 215. He owed no duty to the appellants of a specific performance of the lunatic’s covenants, and when the estate became chargeable with damages consequent upon their breach, the estate was also entitled to the protection which the law extends to innocence in measuring such damages. Indeed, the burden was upon the appellants to prove the facts which would take this case out of the general rule of damages and bring it within the exceptions. The burden has not been successfully borne. The appellants were only entitled to nominal damages.

The order should be affirmed, with costs.

All concur.  