Snow v. Pulitzer ( 1892 )

BARNARD, P. J.

On the 5th of January, 1886, Helen A. French granted a lease to the plaintiff of certain premises in the city of New York, to be used for the sale of confectionery.. The lease expired on the 1st of May, 1889. The plaintiff moved into the premises on April 1, 1886, and expended money thereon to fit it for his business. In April, 1888, Mrs. French sold to the defendant the premises leased to plaintiff, but subject to it, and also other adjoining premises, outside of those leased to plaintiff. In August, 1888, the defendant demolished the buildings next to those occupied by plaintiff. The removal of the walls on the south and west sides of the plaintiff’s premises rendered the same unsafe and dangerous, and the value of the remainder of plaintiff’s lease was destroyed entirely. The history of the removal of the walls was this: Mr. Pulitzer wished to erect a new building. He commenced upon the high building next plaintiff to take it down. When two stories had been removed, it was certain that the plaintiff’s building would fall. The superintendent of buildings then obtained an order to take down both buildings, which was done by the defendant, under the decree for the demolition. This was proof of an eviction. As between Mrs. French and the plaintiff, he had a right to have his leased buildings stand to the end of the lease. Mrs. French had no right to destroy his lease by taking down the lateral support, even if each building had an independent wall, which was disputed. The defendant took Mrs. French’s title with the same duty imposed on him as existed against his grantor. The acts which rendered the premises unsafe so as to cause an actual removal of plaintiff therefrom were sufficient proof of eviction. Dyett v. Pendleton, 8 Cow. 727, appealed in Boreel v. Lawton, 90 N. Y. 293.

The act of eviction was an act of defendant, even though done by a contractor. The plaintiff had a right to his possession from the defendant, and any act done or caused by defendant which drove the plaintiff out of his possession was an eviction. The damages were proper. First, the court permitted a recovery for the value of personal property destroyed; second, loss of profits; and, third, difference between the ■cost of fixtures, put in at the commencement of lease, over and above the amount allowed by Mrs. French therefor. The item seriously contested is the item of profits. The case is one where proof tending to ■show profits destroyed was admissible, and a recovery, for such profits proper, when once established by proof. Schile v. Brokhahus, 80 N. Y. 614; Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. Rep. 264; White v. Miller, 71 N. Y. 118. The judgment and order denying new trial should be affirmed, with costs. All concur.