¶1Judgment and order unanimously reversed upon the law, and new trial granted, with thirty dollars costs to the appellant to abide the event.
¶2The tenants claimed that the furniture which was in the premises when they took possession was not the furniture which was in the premises when the lease was signed. For the purpose of identifying the furniture covered by the lease, the court was justified in-taking testimony. Such testimony did not tend to vary the contract.
¶3The tenants could not, however, assuming that the furniture agreed on was not in the premises, go out and purchase furnishings of an entirely different character. The furniture claimed to have been removed was living room and dining room furniture; that which was purchased was purely for bedroom use. No living room or dining room furniture was either purchased or hired.
¶4The proper measure of damage, therefore, was the difference in rental valué of the premises as they would have been had there been no change in the furniture, and the rental value of the premises *155as they were delivered to the tenant. (Myers v. Burns, 35 N. Y. 269; Cook v. Soule, 56 id. 420; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 id. 34.)
¶5Present — Cropsey, MacCrate and Lewis, JJ.