dissent">O’Brien, J. (dissenting) :

I have no quarrel with the general rules of law whichAIr. Justice Ingraham has extracted from well-settled authorities, my view being that, though good abstract propositions, they have nothing to do with this case.

The complaint, as amplified or limited by the bill of particulars, was framed so as to recover the difference between the rent which with reasonable, effort could be obtained and the rent reserved in the lease, together with certain damages caused by restoring the property to a condition so that it might be rented. The answer was in effect a denial that any sum was due on such theory. Thus the action was not for general damages for breach of the lease, but was expressly brought to recover the amount to which, under the terms of the lease, the plaintiff concluded she was entitled. The error into which she fell was in assuming that they could now be recovered. Instead of seeking to recover them in the manner provided in the lease, from time to time, she wished to have them all ascertained now in one action. This, under the express terms of the lease, she could not do.

The covenant in the lease provided: “ If any default be made in the payment of the said rent * * * the said hiring and the relation of landlord and tenant * * * shall wholly cease and determine and (the landlord) * * * may re-enter the said premises * * * and in such case (the tenant) * * * will pay or cause to be paid * * * damages for the breach of the covenant for rent herein, the difference between the amount of rent hereby reserved and the amount of rents which shall be collected * * * or might with due diligence be collected * * * from the said *116demised premises during the residue of the said term remaining unexpired at or immediately before the time of such re-entry, in equal monthly payments, as the amount of such difference shall from time to time be ascertained.”

There is no ambiguity in the language thus employed, and we, therefore, find, with respect to what has happened, viz., the refusal of the tenant to occupy the premises and pay rent, that the parties stipulated as to the remedy of the landlord, the measure of damages, and how and when it should he ascertained. I assume that it is competent for parties to make their own contracts, and that, when they provide specifically for the remedy and the measure of damages in the event of a breach, those remedies are exclusive. When to those considerations is added the fact that the plaintiff, recognizing the measure of damages to which she is entitled under the lease, brings her action on that theory, I fail to see why, logically and legally, she should not be held to the other terms of the agreement,

. and, therefore, be confined to the method and time of collecting damages. In other words, my view is that, whatever may be the general remedies for breach of a contract, they have no part or place under a contract such as this, wherein the parties themselves have expressly provided 'for an exclusive remedy and a definite measure of damages and even as to the times of collection.

I think, therefore, the learned trial judge was right in his construction of the complaint and the bill of particulars, he in effect holding that while the plaintiff might at the end of the lease have brought an action for the entire difference in amount between what was received as rent and what was stipulated) this action was premature. The construction given to the complaint by Mr. Justice Ingraham would result in great hardship to the plaintiff, for under his construction the action is for a' breach of a lease in which all damages must be recoverable once for all, and the plaintiff at most could recover only such damages as had accrued before the commencement of the action, which are greatly limited in amount. It is but fair to assume that this is a result for which the appellant would not strenuously contend.

I, therefore, dissent and am for affirmance.

Exceptions sustained and new trial ordered, with costs to plaintiff to abide event.

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