Sonneborn v. Steinan , 85 N.Y.S. 334 ( 1903 )

BISCHOFF, J.

The plaintiff, a boarding house keeper, sued for the defendant’s breach of an entire contract whereby he agreed to pay $100 a month for a room and board for himself and his wife during a period ending July 9, 1902. As to the entire character of the contract, the plaintiff’s testimony was corroborated by a disinterested witness, and we find no reason for disturbing the jury’s conclusion upon the facts. There was evidence, also, that the defendant, when removing from the premises, in effect, stated that his room could be reserved for him, or for some tenant he should procure; and, upon this state of facts, the jury could well find that the plaintiff was absolved from a duty of reletting at her own instance for the defendant’s account. Moreover, the only tenant who offered was not' necessarily to be accepted by her, as a matter of strict legal duty,, in view of the effect which the relatively small amount receivable from this proposed tenant might be deemed to have had upon the plaintiff’s business in the maintenance of an establishment of a defined standing. It was also proven that no profit resulted from the permissive occupation of this room by other boarders, and that the changing of rooms (there being no new boarders during the period of the contract) had no effect in lessening the plaintiff’s damages. With a proper allowance, according to the evidence, for moneys saved to the plaintiff in the food, lighting, and heating to be supplied* to the defendant under the agreement, had he performed it, the verdict represented the compensatory damages to which the plaintiff" was entitled, measured by the agreed rate of payment, and was in no aspect excessive.

The record presents no ground for reversal, and "the judgment is-therefore affirmed, with costs. All concur.