Godfrey v. India Wharf Brewing Co.

The complaint states two causes of action— one to recover the balance remaining after deducting a small bill for goods sold by the defendant to the plaintiff from the sum of $100 deposited as security by the plaintiff with the defendant on- the occasion of hiring certain premises in the borough of Brooklyn, and the other for damages for the alleged breach of covenant on the defendant’s part, to 'the effect that such premises were in good repair at the time the plaintiff hired them, and that they would be so maintained during the plaintiff’s tenancy.

The hiring took place in August, 1902; the rent to commence on September 1st, at $25 a month, and the tenancy to be from month to month. The place had been and was to be used as a liquor saloon. The liquor tax certificate was transferred by the defendant to the plaintiff, and his demand note taken for the value of the unexpired period. The $100, as appears by a written receipt given at the time,

The plaintiff failed to make such proof. He gave evidence tending to establish that, two or three weeks after his occupancy commenced, a storm arose, and the roof leaked; that it leaked on the occasion of every storm thereafter; and that no repairs were made by the defendant while he remained in possession. He also testified that the defendant’s authorized manager at the time of the hiring assured him that the premises were in good repair, and that the' defendant would keep them so. This was denied on the defendant’s behalf, although it was proven that, on complaint by the plaintiff of the leaky condition of the roof, the defendant caused it to be repaired in December. Assuming that the jury could have found in plaintiff’s favor upon this issue, the measure of damages would be the difference between the rental value of the place as represented and guarantied and as it was, and upon this question no evidence whatever was given, beyond the fact that the plaintiff agreed to pay $25 a month. The plaintiff claimed that his profits during the two months preceding the first storm amounted to from $25 to $30 weekly, but, even if loss of profits were recoverable, there was no evidence given showing their amount. There was no proof of the difference in the amount of profits, or anything indicating loss, beyond what has been stated. The anticipated profits could not be made the basis of a claim in this case; the rule applicable to the facts being, as already suggested, the difference in value of the use of the premises as they are, and as the lessor agreed they were, or as he agreed to put them. Myers v. Burns, 35 N. Y. 269 ; Cook v. Soule, 56 N. Y. 420 ; Pryor v. Foster, 130 N. Y. 171 , 29 N. E. 123 ; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 N. Y. 34 , 47, 39 N. E. 7 ; Drago v. Mead, 30 App. Div. 258 , 51 N. Y. Supp. 360 ; Huber v. Ryan, 57 App. Div. 34 , 67 N. Y. Supp. 972 . The judgment should be affirmed.

Judgment of the Municipal Court affirmed, with costs. All concur.