
    Francis J. Markham, Respondent, v. David Stevenson Brewing Company, Appellant.
    First Department,
    February 9, 1906.
    Damages — interest not recoverable on breach of covenant by tenant to repair—practice—when objection sufficient.
    A tenant who.has covenanted to make all" repairs and has failed to do so is .not chargeable with interest on the sum recovered by the'landlord in an action for damages for the breach of the covenant. Such damages are not ascertainable by computation, even though the landlord made the repairs at his own cost on the tenant’s default.
    An objection to the allowance of .such interest is timely if- made when the court directs it to be added to the verdict. It need not be made before the jury goes out.
    Appeal by tile defendant, the David Stevenson Brewing Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day -of June, 1905, upon the verdict of a-jury, and also from an order entered in said clerk’s, office on the 26th day of June, 1905, denying, the defendant’s motion for a new trial* made upon , the minutes.
    
      Gratz Nathan, for the appellant.
    
      John H. Corwin, for the respondent.
   Laughlin, J.:

The plaintitf leased certain premises in the city of Mew York to the appellant, and the action was brought to recover the sum of $3,450 damages alleged to have been sustained by the landlord through the failure of the tenant to keep its covenant “ to make all and every repair of every description whatsoever, both inside and outside of the house, and about the demised premises, and to the roof of the said buildings, at his own proper costs an'd expense,” and “ to comply with all the regulations and orders of the Health, Police and Fire Departments, and also all the Municipal Departments of said City,” and to leave the premises at .the expiration of the term in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.”

The decision of this court on a former appeal established the right to recover and disposes of all questions arising on this appeal excepting the right of the plaintiff to recover interest and the award of an additional allowance of costs. (104 App. Div. 420.) The court, on submitting the case to the jury, excluded.from their consideration the amount of interest by directing that they render a verdict for the damages with interest.” When the sealed verdict was reported, the court added the.interest before the verdict was' entered. The defendant duly excepted to the direction to add interest. There was no waiver of defendant’s right to object to the allowance of interest by its failure to except when the. jury went out. The exception taken when by direction of the court the interest was added was timely. The right of the plaintiff to recover interest depends upon whether the claim for damages for breach* of the covenants was liquidated.

Owing to its age and dilapidated condition the building became Unsafe and the building department required certain extraordinary and extensive repairs to be made. The tenant failed to comply with the order. The landlord made, the repairs and has recovered. as damages the cost thereof.. No question appears to have been raised on the trial as to the reasonableness of any disbursement made by the landlord for repairs. The litigation was over the items of repairs for which the tenant was liable. The right to recover interest is not affected by the fact that the landlord made the repairs. His cause of action accrued upon the breach of the covenants to make the repairs, and he might have maintained the action without making the repairs. His measure of damages, so far as material to the present inquiry at least, would necessarily be the same in either case. He could only recover the reasonable cost of making the repairs. Having made the repairs, he could recover the amount expended for repairs, which it was the duty of the tenant to make, upon.proving that it was the fair and reasonable cost of the work. It is manifest that different builders might differ as to the nature and extent of repairs that would be necessary and suitable and properly chargeable to the tenant and as to the cost of making the same, It is difficult to perceive how the defendant could have ascertained, even approximately, .the amount of its liability to the plaintiff to enable it to tender the same. The question depended on proof and could only be authoritatively determined by a verdict or decision.

The respondent relies-on the case of Sweeny v. City of New York (173 N. Y. 416). That was an action on a contract to recover the contract price of removing the Avails and debris after the old Windsor hotel fire. The contract price of the work was no't a gross sum, but a given price per cubic yard of material removed and for each . z day’s labor required. After completing the work the contractors presented a claim for the balance of the contract price computed on the basis prescribed in the contract. It was, held that the damages were capable of ascertainment by mere calculation and that interest was recoverable. If the city had supervised the work it would have known Iioav much material ivas removed and the number of days’ labor employed. The court did not intend to modify the rule of the. common law that a demand must be liquidated or the amount thereof ascertained-before interest is recoverable farther than that rule had been previously «modified in this State by the qualification that “ if the amount due is capable of being ascertained by mere computation, the allowance of interest is proper” but not otherwise. (Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11, affg. 90 App. Div. 4; Delafield v. Village of Westfield, 41 id. 24; affd., 169 N. Y. 582.)

It is quite clear, I think, that the damages for which the defendant is liable were not ascertainable by a mere computation, and, therefore, interest was not recoverable. The facts were not complicated, but the case, involved novel legal propositions, making it difficult and extraordinary, and the discretion of the trial justice Was properly exercised in granting the additional allowance.

It follows that .the judgment should be modified by deducting from the recovery $685.47, the amount of the interest, and reducing the additional allowance to five per cent upon the verdict exclusive of interest, thus reducing the judgment as entered, including costs and extra allowance, to the sum of $1,862.27, and the judgment as so modified and the order appealed from should be affirmed, without costs.

Ingraham and McLaughlin, JJ., concurred; O’Brien, P. J., dissepted.

Judgment modified as directed in opinion and as modified the judgment and order appealed from affirmed, without costs.  