majority">FREEDMAN, P. J.

The defendant concedes the right of the plaintiffs to recover the amount of rent sued for, and relies wholly on his counterclaim for damages based upon plaintiffs’ breach of covenant to repair. Properly construed, the lease provides that if, in case of fire, the damages to the demised premises shall be so extensive as to render them untenantable, the rents shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as the premises shall be put in good repair, but that the lessee’s occupation of the premises shall be deemed conclusive proof of their tenantability. By a separate, distinct, and independent clause it is provided that, in case of only partial, destruction of the demised premises by fire, the lessors shall make-all repairs as speedily as possible. Under this construction of the lease the case should have been submitted to the jury, so far as defendant’s counterclaim was concerned, because upon the evidence adduced by the defendant a question of fact was presented as to whether the plaintiffs made the repairs, rendered necessary by the occurrence of a fire, as speedily as possible, and, if they did not, as to the amount of damage sustained by the defendant in consequence *145thereof. As to the measure of damages, the decision in Hexter v. Knox, 63 N. Y. 561, does not apply, and the proof offered by the defendant to show loss of profits in his business was properly excluded. The proper measure of damage is the difference between the rental value of the portion of the premises that was partially destroyed in the condition it was in as destroyed, and the condition it would have been in from the time it should have been repaired, if properly repaired. Cook v. Soule, 56 N. Y. 420; Godfrey v. India Wharf Brg. Co., 87 App. Div. 123, 84 N. Y. Supp. 90. Sufficient evidence having been given upon the points indicated to call for the submission of the case to the jury, the direction of a verdict in favor of the plaintiffs was error.

The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Citation profile

Relationships

How this case has been treated — in progress