
    L. Helen Livingston, Respondent, v. John M. Robb and William Robb, Appellants.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Damages — Particular contracts and relations — Leases or contracts to give lease — Liability of lessee — Breach of covenant for surrender of premises.
    Landlord and tenant — Rights, duties and liabilities in regard to premises— Possession, enjoyment and use — Duty of tenant to surrender on termination of lease — Remedy of landlord — Damages recoverable after removal of tenant by summary proceedings.
    A landlord may recover damages for the breach of a contract to surrender the leased premises in good condition at the termination of the lease, though the tenant has been removed by summary proceedings.
    In such action the landlord may recover the rental value and the cost of removing the tenant’s property, but not counsel fees, marshal’s fees, charges for talcing out the precept, nor the expense of service thereof in the summary proceedings.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal. Court of the city of New York, fifth district, borough of Manhattan.
    Harold C. Knoeppel, for appellants.
    Ralph H. Raphael, for respondent.
   MacLean, J.

The plaintiff brought this action to recover damages alleged to have been sustained in consequence of a breach by the defendants of the covenant to surrender the premises in good condition at the termination of their lease. Having removed the defendants by summary proceedings, the right to recover for a breach of the covenant remained in force. Vernon v. Brown, 40 App. Div. 204. In that case rental value and cost of restoration were allowed as damages, as herein may be allowed the rental value and cost of removal of property belonging to the defendants, but ■ not the sums allowed by the court below, consisting of counsel fees, marshal’s fees, charges for taking out the precept, service of same and putting the summary proceedings on the calendar, as not properly contemplated within the result of the breach of the covenant sued on. The judgment should, therefore, be reduced by the sum of thirty-eight dollars.and fifty cents and, as thus modified, affirmed, without costs of this appeal to either party.

Judgment modified by being reduced by the sum of thirty-eight and fifty cents, and, as thus-modified, affirmed, without costs of this appeal to either party.

Gildersleeve and Seabury, JJ., concur.

Judgment modified and as thus modified affirmed, without costs of this appeal to either party.  