
    Josef Nemrow and Others, Appellants, v. Assembly Catering and Supply Company, Respondent.
    Second Department,
    October 4, 1907.
    Landlord and tenant—breach of contract tp heat building — measure of damages.
    When a tenant running a restaurant sues his landlord for a breach of a covenant in the lease requiring him to heat the demised premises and supply hot water and steam for cooking purposes, by reason of which breach customers left or refused to pay for food ordered, the measure of damages is the falling off in the plaintiff’s receipts, less the value of any food of the day that could be used thereafter.
    
      The damages are not to be measured by the net profits, for the running expenses •' might exceed the same. .In figuring the damage the expense of running the restaurant should be included. .
    The rule that the'measure of damages for a breach of contract includes .gains . prevented, and losses sustained still obtains, subject to the limitation that the damages be such as may be made reasonably certain by evidence and were in the' contemplation of the parties when making the. contract. •
    , Appeal by the plaintiffs, Josef Nemrow and others, fi’onx a judgment of the Municipal Court, of the city of New York in favor of the .defendant, rendered after a trial before the. court, without a jury.- ■ ' " . • . . ■
    The action was for damages for breach of contract. The defendant leased part of a building to the plaintiffs to be usfed as. a restaurant. . The lease contained an agreement by the landlord to properly heat the demised premises and to supply sufficient hot water and steam for cooking purposes. This agreement was broken on two days. • The plaintiffs proved that the coal supply became exhausted; that the place was so. cold that persons who came there to eat Would n,ot stay; .that the food which had been prepared and cooked on- the range could not be kept warm for lack of steam to heat the apparatus used for that purpose, and warm .food Could not be served for.that reason; that customers refused to order, or ordered food .and left it without paying for it; that the usual daily receipts fell off' on the said two dáys about $80 a day; that the food-thus prepared and ' not used-was a total loss, as the portions coulcP not be used next day. Evidence' that the falling off persisted for a day or two was excluded. The defendant, proved that the profit was' 60 per cent of the receipts.
    
      R. M. Cahoone, for. the appellants.
    
      Charles S. Carrington, for the respondent.
   Gaynor, J.:

The Justice- gave judgment for the defendant, on the ground that there is no proper proof in this case , as to damages ”. The' -notion seems, to. have been that , the measure of -damages was the difference between the rental value of the place with and without the agreement for. heat, hot water and steam- being.kept. If this, were so, the evidence of falling off of customers' and receipts was competent to show a decline in rental or usable value and the extent of it, according to tlie case of Reisert v. City of New York (174 N. Y. 196). But the measure of damages was the falling off in receipts, less the value of any food of the day that could be used thereafter. The net profit is not the measure of damages, for- all of • the expenses of the plaintiff, which had to be paid, out of the receipts, went .on, and they might exceed the net. profit. The rule. of the''seed cases is applicable. The crop failing, the expense of .labor arid money put into it has to be included in figuring up the damage, as well' as the "net' profit (White v. Miller, 71 N. Y. 118). The rule that tjie measure of damages for breaches of contract includes gairis prevented and losses sustained has not been affected-by' the decision in Witherbee v. Meyer (155 N. Y. 446). That decision.only reiterates the limitations of the rule, i. e., the damages must be such as may be made reasonably certain by evidence, and must have been in the contemplation of the "parties in making the contract.

The judgment should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred."

Judgment of tlie Municipal Court reversed and new trial ordered, costs to abide the event.  