Citation Numbers: 6 Daly 291
Judges: Daly
Filed Date: 12/31/1875
Status: Precedential
Modified Date: 2/5/2022
Action for damages on account of injuries to premises Nos. 645 and 647 Broadway, caused by defendants’ removal of certain partition walls and partitions, gas fixtures, &c., in the upper floors of said premises. Defense, that defendants were the assignees of the lessees of said premises, under a lease from plaintiff, which provided that the lessee should “ have the right to make any inside alterations to said premises, as he may think proper, provided that the same do not injure the premises hereby leased.”
The right of the lessor to maintain this action before the expiration of the lease was established by the decision of the Commission of Appeals in this case (Agate v. Lowenbein, 57 N. Y. 610).
Under the charge of the court, the jury found a verdict for’ plaintiff, for $7,708 77, being $6,286 damages and interest. The rule of damages laid down by the court for the guidance of the jury in case they found that the plaintiff was injured and the property depreciated in value by the alterations made by the defendants/was l£ that the jury might, in estimating the damages, take into consideration the decrease in rental value, and the reasonable value of restoring the premises to their former condition ; ” and, again, that the jury might ££ take into consideration the rental value as a basis of their calculation; and, of course, also take into consideration the expenses of restoring the property to its former condition.”
The charge was erroneous in respect to permitting the jury to take into consideration the value or the expense of restoring the premises to their former condition. The lessees and their
Certain authorities cited by respondent, seem to favor the rule under which the case went to the jury, i. e., that plaintiff was entitled to the cost of restoring the premises. The case of Duke of Newcastle v. Hundred of Broxtowe (4 B. & Ad. 273), was the case of a house pulled down and destroyed by a mob, and it was charged that the jury ought to consider what sum would be necessary to repair the injury and replace the building in the state it was before. This was in effect hut the rule contended for by appellants; if the house were destroyed, the difference in value between what it was before and after the injury was in fact its whole value at the time of destruction, or the cost of completely restoring it. The case of Austin v. Hudson River R. R. Co. (25 N. Y. 334) presents much the same features. There the walls of plaintiffs’ building, erected on a pier, fell because of the excavations adjoining made by defendants. The judge charged that plaintiffs were entitled to recover “ the amount of damages actually sustained, including loss of rent from tenants.” Wright, J., says that “ it is not seriously questioned that plaintiffs were entitled to recover the cost of repairing and putting the building in as good condition as it was before the injury,” referring doubtless to the fact afterwards stated by Allen, J., that the measure of damages was not made a question on the trial. The discussion by both the learned judges, of the measure of damages, a question not raised on the trial so as to require investigation on the appeal, can hardly be regarded as intended as an authoritative enunciation of the general law; but in that particular case where the walls of the building had fallen and it was untenantable, the difference in value before and after the injury was the whole cost of construction. And so in the case of Cook v. Champlain Trans. Co. (1 Denio, 91), for the total destruction of buildings and machinery by the negligence of defendant, it was decided that the measure of damages “should be the value of all the property destroyed.” Even in actions of
The judgment should be reversed and new trial ordered, costs to abide event.
Chables P. Daly, Ch. J., and Loew, J., concurred.
Ordered accordingly.