
    Joseph Segal, Resp’t, v. Hyman Ensler, Appl’t.
    [(Supreme Court, Appellate Term, First Department,
    
    
      Filed Feb’y 26, 1896.)]
    
    1. Landlord and tenant—Breach.
    A lessee, who gives notice, before his term commences, of his refusal to take possession or pay rent, is guilty of a breach of the lease and liable to an action by the lessor for damages.
    2. Same—Damages.
    In such case, the measure of damages is the rent reserved for the term, less (he payment on account, and the amount received for the use and occupation of the demised premises during the term, from others.
    8. Same.
    But where it is not shown that the lesser occupied the demised premises or otherwise derived advantage therefrom during the term, (lie recovery should he limited to the balance of the rent which the lessee had agreed to pay.
    4. Same—Performance.
    After a breach of the lease by one of the parties thereto, it is not compe tent for him to place the other party, whose performance was prevented by the breach, in default, by a tender of performance.
    Appeal from a judgment in favor of plaintiff.
    Abraham D. Levy, for app’lt; Sol. A. Hayman, for resp’t.
   BISCHOFF, J.

The facts determined by the justice upon sufficient evidence are that on March 22, 1895, the plaintiff and the defendant entered into an oral contract whereby the plaintiff agreed to let and the defendant to take certain apartments, at- the time in the possession of another, and situated in the .plaintiff’s premises, for the term of one month, commencing on the next succeeding 1st day of April, at the rental of $25, payable in advance, $5 whereof were paid at once; and that thereafter, and before the commencement of the term, the defendant notified the plaintiff of his refusal to enter into possession of the demised apartments, and to pay the balance of the rent as agreed. The plaintiff was awarded recovery of $20, and the judgment is assailed upon two grounds: Firstly, that, inasmuch as it was undisputed that the plaintiff failed to give possession of the demised apartments upon the defendant’s demand after the commencement of the term, and while the former occupant continued in possession, no recovery should have been allowed ; and, secondly, that an incorrect measure of the'plaintiff’s damages was applied. 'Neither ground is well taken. The controversy was to be determined by the rules of law which ordinarily prevail in the cases of contracts. The defendant’s repudiation of the contract, though before the commencement of the term, constituted a breach of performance on his part, which entitled the plaintiff to maintain an action forthwith for the resulting damages. Howard v. Daly, 61 N. Y. 362. The case cited was one of a contract of service, ibut in principle it is not distinguishable from the one at bar. No sound reason can be advanced why an employe should not be required to wait his employer’s change of mind while the lessor should be' subject to the caprice of his lessee at the risk of being unable to let his premises to another after the time for the commencement of the term has arrived; and the principle laid down in Howard v. Daly was ajxplied to the case of a vendor and vendee, where it was’ held that the vendee’s notice of his intention, before the time fixed for the delivery of the goods, not to accept them, entitled the vendor to treat the contract as broken, and to maintain an action for damages for such breach. Windmuller v. Pope (N. Y. Ct. App.) 14 N. E. 436.

The measure of the plaintiff’s damages for the defendant’s breach of contract was the rent reserved for the term, less the payment on account, and the amount received for the use and occupation of the demised premises during the term, from the others. Gear, Landl. & Ten. § 12; Cleveland v. Bryant, 16 S. C. 634. At the time of the trial in the case at bar the term had expired. It was not shown that the plaintiff occupied the demised apartments or otherwiee derived any advantage therefrom during the term, and the recovery was limited to the balance of the rent which the defendant had agreed to pay. No error with regard to the computation of the damages awarded therefore appears. Bassett v. French, 10 Misc. Rep. 672; 64 St. Rep. 292.

Obviously, the question which the defendant’s counsel sought to raise upon the argument of this appeal—whether, in the case of • a lease of such short duration that the incoming lesses may not avail himself of existing remedies to. secure possession from a third person wrongfully withholding it, before the expiration of his term, there is not imported into the contract an implied undertaking on the part of the lessor to deliver such'possession, Contrary to the rule adjudged in the case of a lease for a longer period (Insurance Co. v. Scott, 2 Hilt. 550)—is not presented by the facts determined upon the trial as they appear from the record. The contract of lease was terminated by the defendant’s breach, before the commencement of the term ; and, should we assume the rule to be consistent with the contention of the defendant's counsel, it remains that it was optional with the plaintiff to waive the defendant’s breach, and to reinstate the contract with its original effect. After a breach of the contract by one of the contracting parties, it is not competent for him to place the other, whose performance was prevented by the breach, in default, by a tender of performance. Windmuller v. Pope, supra.

The judgment should be affirmed, with costSo

All concur.  