
    Arthur M. Rose et al., Resp’ts, v. Jacob D. Butler, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Lease—Covenant to iiepaik—Damages.
    In an action for breach of a covenant to repair contained in a lease, whereby the tenant’s goods have been injured, the true measure of damages is the difference in value of the premises as they were and as they would have been if the defendant had kept his agreement.
    2. Same—Negligence of tenant.
    If a tenant elects to leave property, which he knows water will damage, in a place w-here he has reason to believe that rain will beat in case of a storm, he does it at his own risk and must suffer the consequences.
    Appeal from judgment iu favor of plaintiffs, entered upon verdict, and from order denying motion for a new trial.
    Plaintiffs are partners in the business of designing carpets, curtains and wall papers, and occupied rooms on the top floor of defendant’s building fronting on Union Square in the city of New York under a lease which contained the following covenant: “If said premises shall be so slightly injured by fire or the elements as not to be rendered unfit for •occupancy, then the lessor agrees that the same shall be repaired with all reasonable promptitude.” By its eighth clause it also provided as follows : “ Said lessor
    shall not be liable for any damage to any property, at any time, in said premises from the Croton or other water, rain or snow, which may leak into, issue or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works of the same, or from any other place or quarter.” On the 21st of January, 1892, a fire occurred in a neighboring building, the heat of which cracked the panes of glass in the skylight of plaintiff’s premises, but no glass was broken out. Pending an examination by the insurance appraiser, and on the 20th of February, there was a rainstorm, during which the rain beat in through the cracked glass and injured certain water color designs.
    
      It appeared that plaintiffs had a cabinet of drawers in which they kept designs, but that the ones in question were left on a rack.
    The court left it to the jury to determine whether the defendant’s delay in making the repairs was unreasonable, as to the effect of the fire, and continued the charge as follows: Now, it is the claim of the defendant that if 'any injury was sustained, if these papers were damaged, it was the result of the negligence and want of care of these plaintiffs. Upon that subject the law is this: These plaintiffs could not carelessly and negligently expose their fine and delicate water prints and designs to the weather, and then after they had sustained damage ask the defendant to pay for them. For instance, suppose they had hung one of these delicate water paintings in front of a window which was open, and they knew was open, and left it there over night, and a storm had beaten in arid injured the paper, then you would be at liberty to say that that was their own fault, that it was carelessness, that it was not proper care to leave these delicate designs exposed to the weather. Well, now, it is the claim of the defendant that that is what they have done, that these designs were left on racks open in the room, whereas proper care would require them to be folded and laid away in some secure and safe place where they would not be injured by the elements if there was any danger of the rain coming through these windows. If you find that question against plaintiffs, then they are defeated. But if you find for them, then you can go on ; if you have found these three or four questions against the defendant and in favor of plaintiffs, to the question of damages.
    “ Upon the question of damages there is a great deal of controversy. It is the claim of the plaintiffs that these designs, such as they expose to you, were worth, some of them $150, some $75, and so on, the estimate of which you heard amounting in all to over $700. They exposed them to you, and pointed out the injuries upon the paper, as I understand, and both of them said, I think, that they were not capable of restoration, could not be restored. Then the defendant called a gentleman, who professed to understand his business, who seemed, as far as I could see, to be familiar with it, and he said to you, after a thorough examination, that they could all be restored, or they could be renewed. In some one or two instances he said to you that the restoration would cost less time and labor than to make new ones ; in others he said a new one could be made. That is the testimony for you to take into consideration ; you take the estimate of the plaintiffs and then that of the defendant, upon the question of damages. Of course, you must see, if you decide all the other questions which I have submitted to you against the defendant, and if so yon are to say how much these plaintiffs have been injured, how much damage they have sustained by the injury to these water colors by the water; and if you find for the plaintiffs, then you are to make your verdict up i:i that way.”
    Defendant’s counsel: “ I request your honor to charge that if
    the plaintiffs are entitled to recover at all, they can only recover the difference in the value of the use of the damaged premises as they were and as thpy would have been had they been in the same condition as they were immediately before the fire.”
    The Court: “ That I have refused to charge.”
    Defendant’s counsel excepts.
    The jury rendered a verdict for the plaintiff in the sum of $765.
    
      Close & Robertson, for app’lt; James M. Hunt, for resp’ts.
   Pratt, J.

This is an from a entered a, verdict of a jury and from a motion denying a new trial upon the minutes.

There seems to have been no error committed upon the trial except in the instructions as to the rule of damages.

We think the rule which the court was requested to charge, to wit: “That if the plaintiffs are entitled to recover at all they

ean only recover the difference in value of the use of the premises as they were and as they would have been if the defendant had kept his agreement,” was the correct one and should have been charged.

It is very clear that the verdict is excessive, even assuming that the rule charged is true.

It seems that after the storm and after plaintiffs knew the full extent of the damage they had suffered, they fixed the amount of their damages at about $400, and, without some explanation upon their part, they ought to have been confined to that sum.

Again, the evidence is very unsatisfactory as to the elements of damage that should be taken into consideration, but it is unnecessary to discuss that part of the case.

It is plain that plaintiffs knew as well, if not better, than the defendant, the condition of the roof after the fire, and the hazard of leaving their designs in a position to be damaged in case of a recurrence of a storm. If they elected to leave their property, which they knew water would damage, in a place where they had reason to believe that the rain would beat in case of a storm, they did it at their own risk and must suffer the consequences. iCook v. Soule, 56 IST. Y., 428.

Such injuries as are here complained of could not reasonably have been contemplated by the parties when the lease was made.

Again, it may be said that under the eighth clause of the lease the plaintiffs took the risk of all damage from water.

Judgment reversed and new trial ordered, costs to abide the event.

Barnard, P. J., concurs; Dykman, J., not sitting.  