Chansky v. William Const. Co. , 144 N.Y.S. 687 ( 1913 )

PAGE, J.

The action was brought to recover damages for breach of an oral lease. The plaintiff proved that the defendant’s agent accepted a deposit of $10 for a lease of a store to the plaintiff for one year at $60 per month, and that a few days thereafter the defendant refused to permit the plaintiff to move into the premises, and refused to rent them to him because his insurance rates would be increased on account of the nature of the plaintiff’s business..

[ 1 ] The plaintiff’s measure of damages for this breach was the difference between the rental value of the premises and the rent reserved in his agreement with the defendant. It has also'been held that in such a case the tenant may recover his actual and necessary expenses incurred in preparation for the occupation of the premises, but only such as were fairly within the contemplation of the parties. Friedland v. Myers, 139 N. Y. 432, 34 N. E. 1055.

[2] The plaintiff was allowed over the objection of the defendant to show as items of damage $22 which he had paid for rent of hiring apartments in the neighborhood of the store which he had rented. This was clearly not within the contemplation of the parties, and it was error to allow the jury to consider it as an item of damage.

[3] The learned trial justice also committed error in allowing the plaintiff’s expert to testify as to the rental value of the property, in spite of the fact that he showed that he had had no dealings in store property in that locality, and had no basis for an opinion as to its value.

The judgment appealed from must be reversed, and a new trial granted, with cdsts to the appellant to abide the event. All concur.