56 N.Y. 420, Cook v. Soule

Citation:56 N.Y. 420
Party Name:CHRISTIAN COOK, Appellant, v. NATHAN SOULE et al., Respondents.
Case Date:April 28, 1874
Court:New York Court of Appeals
 
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Page 420

56 N.Y. 420

CHRISTIAN COOK, Appellant,

v.

NATHAN SOULE et al., Respondents.

New York Court of Appeal

April 28, 1874

Argued Apr. 22, 1874.

Page 421

COUNSEL

Irving G. Vann for the appellant. It was error to receive evidence as to what property was injured in consequence of leakage. (2 Gr. Ev., § 256, and cases cited; Sedg. on Meas. of Dam., 67, and cases cited; Ward v. Kelsey, 42 Barb., 582.) The measure of damages was the actual cost of the repairs, with interest to the date of the recovery. (Darwin v. Potter, 5 Den., 306; Blanchard v. Ely, 21 Wend., 342; Briggs v. Dwight, 17 Id., 71; McCleary v. Edwards, 27 Barb., 239; Thompson v. Shatwick, 2 Web., 615; Burkard v. Babcock, 27 Abb., 421; McClowry v. Croghan, 31 Penn. St., 22; Miller v. Mariners' Church, 7 Green, 57; Laker v. Damon, 17 Pick., 284; Taylor's L. and T., § 327.)

Isaac D. Garfield for the respondents. The contract to repair was in the nature of a warranty, and an action lies for its breach. (Cook v. Soule, 1 S. C. R., 116; Myers v. Burns, 35 N.Y. 269.) The court properly charged that defendants were entitled, as damages, to the difference between the rental value of the premises as they were and as they would have been if kept in repair. (Myers v. Burns, 35 N.Y. 269; Berrian v. Olmsted, 4 E. D. S., 279;

Page 422

Mills v. Guardns., etc., L. R., pt. 2, Feb. 1, 1873, p. 61; Mayne on Dam., 133; 92 L. Lib.; Paine v. Haines, 16 M. & W., 541; Trull v. Granger, 4 Seld., 115; She v. Rowlands, 9 C. & P., 734; Beach v. Crain, 2 Coms., 86, 97.)Defendants' damages in consequence of plaintiff's failure to perform his contract are a proper subject of counter-claim. (Waterman on Set-off and Counter-claim, 592, 608, 611; Ayres v. O'Farrell, 4 Robt., 668; Myers v. Burns, 33 Barb., 441; Ogden v. Coddington, 2 E. D. S., 317; Boston S. and W. Mills v. Eull, 6 Abb. [ N. S.], 396.)

GROVER, J.

This was an action by the plaintiff to recover a balance claimed to be due for rent of certain premises in Syracuse occupied by defendants as tenants. The defence was a counter-claim of damages, alleged to have been sustained by the defendants from a breach of an agreement by the plaintiff, to put and keep the premises in good repair. The premises were used by the defendants for a livery stable.

The defendants had the right to set up this counter-claim as a defence in the action. It arose out of the contract or...

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