
    Bruce et al. v. Welch.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Measure of Damages—Landlord and Tenant—Fixtures.
    The damages a tenant may.recover against his landlord for wrongfully preventing the removal of mantels from the building in violation of the terms of the lease are measured by the value of the mantels to the landlord as parts of the building, and not by their value if detached and delivered to the tenant, as the landlord might otherwise reap a benefit from his own wrong.
    Appeal from circuit court, New York county.
    Action by David W. Bruce and others, trustees, against Uriah Welch, for rent. Defendant filed a counter-claim for breach of a covenant in the lease by which plaintiffs were bound to permit the removal of certain mantels and grates. There was a judgment for plaintiffs, which was reversed on appeal. 43 Hun, 640, mem. On the second trial there was a verdict and judgment for plaintiffs for $963.30, and defendant again appeals.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Charles E. Miller, for appellant. A. P. & W. Man, for respondents.
   Bartlett, J.

I think the defendant was entitled to a broader measure of damages than was sanctioned by the trial judge in his rulings upon the evidence sought to be introduced to sustain the counter-claim. Under the covenant in the lease the defendant was to be allowed to remove the marble mantels and grates, provided that he made good the injury which might be done by such removal; and by way of counter-claim against the demand of the plaintiffs for the rent of the premises lie averred that when he wished and attempted to remove the mantels and grates, both before and also immediately after the expiration of the lease, his landlords prevented him from so doing, and have continued to keep such mantels and grates, and use them. In the briefs of counsel there is some discussion as to whether any right of removal •on the part of the tenant existed after the term expired, but it is unnecessary to pass upon this question, as there is no proof of any effort to take away the property subsequent to the expiration of the lease. In proving his damages by reason of the unlawful detention of the mantels and grates, the defendant was limited to evidence of their value after being taken out of the hotel property, and removed therefrom. He sought to show, by a witness familiar with the value of such property, what was the value of these particular mantels as they stood in the hotel, and were used by the proprietors of the building; but the question put for this purpose was'excluded. The trial judge was also requested to charge the jury that the defendant was entitled under his counter-claim to recover the value of the mantels to the plaintiffs as used by them, but he refused to give the desired instruction. An exception was duly taken to the ruling of the court in each instance, and these exceptions present the principal question in the case.

Good morals certainly forbid that a man should be allowed to derive benefit from a violation of his obligations to others. Does the law permit a wrong-doer to retain to himself , ad vantages thus gained as against the person whom he has wronged? I think not. There are cases in which indemnity to the injured party is not the full measure of the damages which he may be entitled to recover, and it seems to me that this is a case of that character. The mantels, as they were left iri the hotel, unmoved, might well be worth twice as much as they would have been if detached from the property and turned over to the defendant; and in that case, if the damage recoverable by the tenant for being deprived of them were limited to their value after removal, the landlord would make a profit by keeping them in violation of his covenant. A rule for the ascertainment of damages which would permit such a result should not be approved unless sustained by some authority which we feel bound to follow. Instead of being thus supported, a rule more in consonance with natural justice has been enunciated as applicable to such a state of facts as this case presents. In the well-known and very able opinion of Duer, in the case of Suydam v. Jenkins, 3 Sandf. 614, that learned judge says- “Setting aside the exceptional cases in which exemplary damages may justly be claimed and .given, and confining ourselves to those in which the remedy sought is simply pecuniary, the principles which, as it seems to us, are manifestly just and universal in their application are that the owner, to whom compensation is due, must be fully indemnified, and that the wrongdoer must not be permitted to derive any benefit or advantage whatever from his wrongful act. ” The latter proposition is reasserted in different forms in the course of the opinion, and its correctness illustrated by various examples: .“If goods uninsured should by force or fraud be removed from a warehouse, which immediately thereafter is consumed by fire, as they must have perished had they remained it is certain that the owner sustains no loss from the removal; yet none can suppose that in an action against the wrong-doer the fact could be given in evidence to bar a recovery, or that the recovery could be for a less sum than the value of the goods when removed. Here, although the judgment in its whole amount is a positive gain to the owner, yet it imposes no penalty in the form of exemplary damages upon the wrong-doer. It merely compels him to pay for that which he had no right to appropriate, and thus prevents him from deriving any benefit from his wrongful act. ” And so in the case at bar, to compel the plaintiffs to pay what the mantels are worth to them does not impose upon them any damages by way of punishment, but merely forces them to give an equivalent for what they have unlawfully retained from the defendant, and precludes them from making any profit out of their own wrong. As the jury might have allowed the defendant a larger sum by way of counter-claim, and reduced the plaintiffs’ recovery proportionately, if the correct rule as to the measure of damages had been applied, the judgment should be reversed, and a new trial granted, with costs to the appellant, to abide the event. All concur.  