
    Stephen S. Chatterton v. Edward Fox.
    When a tenant is evicted before the expiration of Ms lease, he is thereby absolved from all liability to pay rent from the commencement of the quarter in which the eviction occurred. He may also recover the difference between .the value of his lease for the unexpired term, and the stipulated rent.
    If evicted at a season of the year when the expense of removing is greater than it •would have been at the expiration of the term, he may recover such extra expense.
    But he cannot recover, as a matter of course, any increased rent which he may he compelled to pay for other premises which he may hire for the purposes of the business for which he was using the premises from wMch he was evicted.
    (Before Dunn, Boswobtb and Slosson, J.J.)
    October, 1855.
    This action came before the court on an appeal from a judgment entered upon the report of a referee, in favor of the plaintiff, for $429.26.
    The report is as follows:
    I, Henry Brewster, sole referee, appointed to hear and determine the issues in this action, do certify and report to the Superior Court of the city of New York, that I have been attended by the counsel of the respective parties, and that I have examined the issues, and taken the testimony of the several witnesses on oath, and I do find, as matters of fact, that the plaintiff wastenant of the front room in the second story of the building, on the lot at number 186 Water street, in the city of New York, under a lease; his term ending the first day of May, 1853; and that the rent was at the rate of $250 per annum. That the defendant became the owner of the premises number 136 Water street, in January, 1851, and, as such, the landlord of the plaintiff, and entitled to the rent. That in November, 1852, the defendant, by his servants, so tore down and demolished the building as to deprive the plaintiff of the enjoyment thereof and in consequence of which the plaintiff was obliged to, and did remove therefrom, the latter part of November, or early in December. That he was subjected to great disturbance and interruption before removing, and that he was a job printer by trade, and had a business established, which was interrupted for a time, and the good-will injured by his removal, and he was put to expense, inconvenience, and subjected to a heavier rate of rent in the premises to which he removed, besides the necessary losses incident to removal at an unusual and cold season of the year. His damages and expenses I have estimated, after a careful consideration of the evidence, at $288rfir.
    I find that the conduct of the defendant is wholly without excuse, and being tortious, I have found $he damages resulting on the principle of a.liberal allowance of all damage shown to have been sustained by the plaintiff.
    The defendant having, in his answer, set up a counter claim, on which issue is joined, by the plaintiff, on the merits, I find that there is due from the plaintiff to the defendant, $62.50 for one quarter’s rent, due on the first of November, 1852.
    That the defendant is not entitled to rent after the end of that quarter, because he had destroyed the premises so as to deprive the plaintiff of the enjoyment.
    As to the law, I find, that the acts of the defendant bar all claim for rent after the first quarter. That the acts of the defendant being tortious, I may take a more liberal scale of finding damages, where the amount cannot be stated by witnesses with exactness, than in a mere breach of contract; yet that damages must be proved from the acts of the defendant. That the defendant is liable for what was done in this case, it being under his direction.
    I also decide that the plaintiff, not having demurred, or moved to strike out the defence of counter claim, and the issue being presented under the rule for reference, I am now bound to try that issue, and allow the counter claim. I have not allowed interest, because the damages of the-plaintiff, sustained about the same time, exceeded the amount of the rent due. I do therefore direct judgment for the plaintiff for the sum of two hundred and twenty-six dollars, being the balance of his damages after deducting rent due to the defendant.
    The matters of fact, and points of law, upon which the court held that the referee erred, are sufficiently stated in the opinion of the court.
    
      A. Matthews, for the defendant and appellant.
    
      J. S. Carpentier, for the plaintiff and respondent.
   By the Court. Bosworth, J.

We think the finding of the referee, that the defendant evicted the plaintiff, and that the eviction was in November, 1852, is fully warranted by the evidence.

The evidence is, that the plaintiff hired the premises in Maiden Lane on the first of November, 1852. This was before the eviction. We are not at liberty to infer that this hiring was in consequence of the eviction. The referee allowed as an item of damage, the “heavier rate of rent” of the premises to which the plaintiff removed. Eor aught that appears, the plaintiff might have hired a room of the dimensions of that from which he removed, at the same rent, and one as well adapted to his business. If the referee allowed the difference in the rent of the two premises, for the period of six months, he must have allowed eighty- . seven dollars and a half for the increased rent, if he allowed the actual difference, for the unexpired term of plaintiff’s lease.

Instead of there being any evidence tending to show that the plaintiff was obliged to pay this rent in consequence of the eviction, the evidence shows that he hired before he was evicted, and that if he had not been evicted, he would have been obliged to pay the rent of the premises in Maiden Lane, as well as rent to the plaintiff.

If the plaintiff had a valid lease, which would not expire until the first of May, 1853, the consequences of being forcibly evicted by his landlord in November, 1852, would be, first, an exemption from liability to pay rent from the commencement of the quarter in which the eviction occurred; second, a right to recover the difference between the value of the lease for its unexpired term and the stipulated rent; third, any other damages which necessarily resulted from the eviction.

If it is clearly shown that it cost more to remove, at the season of the year when the eviction occurred, than it would at the ex^ piration of the lease, this excess of expense may be recovered. (Noyes v. Anderson, 1 Duer, 342, 352-3.)

The judgment must be reversed, the report of the referee set •aside, and a new trial ordered, with costs to abide the event.  