Appleton v. Marx

• Decision Date: 28 January 1908
• Parties: APPLETON et al. v. MARX.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 81

83 N.E. 563

APPLETON et al.

v.MARX.

Court of Appeals of New York.

Jan. 28, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by William W. Appleton and another, trustees under James E. Cooley's will, against Max Marx. From a judgment of the Appellate Division of the Supreme Court (117 App. Div. 206,102 N. Y. Supp. 2) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Charles Strauss, for appellant.

J. Hampden Dougherty, for respondents.

WILLARD BARTLETT, J.

This action was brought by the plaintiffs as landlords against the defendant as tenant to recover a balance of rent claimed to be due under the lease and damages for an alleged breach of a covenant to keep the demised premises in repair. The claim for rent was practically undisputed; and the principal matters litigated upon the trial before the referee were (1) the claim for damages arising out of the alleged breach of the covenant to repair, and (2) the defendant's counterclaim to the effect that he was induced to enter into the lease by means of false and fraudulent representations. The referee dismissed the counterclaim, and directed judgment in favor of the plaintiffs for $1,000 rent and for $4,180.78 damages.

The action was not brought until after the expiration of the defendant's term under the lease. It appeared, however, that prior to such expiration the demised premises had been let to another tenant-a corporation known as the L. E. Waterman Company-which subsequently, and after the defendant's term had expired, made at its own expense certainrepairs upon the building which were sufficient to put it into good condition. The referee held that the plaintiffs' measure of damages was the cost of putting the demised premises into the state of repair contemplated by the broken covenant, and that the right to recover this amount was not affected by the subsequent act of the new tenant in repairing the building. We think that the counterclaim was properly dismissed, and that there was sufficient competent evidence to sustain the finding of the referee as to the cost of the necessary repairs. The only questions which we deem it necessary to discuss relate to the proper measure of damages in such a case, and the effect which should be given to the fact that the premises were put into repair by the new tenant.

As to the first question, the rule laid Cown by the leading text writers is that, where the action for the breach of a lessee's covenant to keep in repair is brought before the expiration of the term, the measure of damages is the injury done to the reversion, while, if the action is brought after the expriation of the term, the measure of the damages is the cost of putting the premises into repair. Thus, Mr. Mayne, an author whose work has frequently been referred to with approval in the English courts, says: ‘Where the action is brought upon the covenant to repair at the end of the term, the damages are such a sum as will put the premises into the state of repair in which the tenant was bound to leave them.’ Mayne on Damages (6th Ed.) 278. According to Sedgwick, ‘where the tenant at the end of the term leaves the premises out of repair, the measure of damages is the cost of putting them into repair, and not the depreciation in value of the property.’ 3 Sedgwick on Damages (8th Ed.) § 990. This appears to have been the approved rule in England for many years. Thus, Baron Parke, in Penley v. Watts, 7 Meeson & Welsby, 601, speaking of the breach of such a covenant, said: ‘The only true measure of damage here is what it would have cost the defendants to put the premises in repair.’ In Davies v. Underwood, 2 Hurlstone & Norman, 570, Baron Watson said that the damages recovered on the breach of a covenant of this sort were usually such as would be sufficient to put the premises into repair, and that as matter of fact it was never proved to what extent the reversion was damaged.

The same doctrine is asserted in many subsequent English cases which also involved the second question which arises for consideration here, that is to say, the effect of the acts of third parties relied upon as restricting the amount of the landlord's right of recovery to nominal damages only. I will refer to some of these decisions. In Rawlings v. Morgan, 18 Common Bench, 776, 114 Eng. Com. Law, 776, the lease contained a covenant on the part of the lessee to keep and yield up the premises in repair. When the lease expired the premises were in a dilapidated condition, and it was held that the landlord was entitled to recover the sum requisite to put them in repair in conformity with the covenant. Before the expiration of the lease the plaintiff, who was one of the reversioners, had made an agreement with a third person to grant him a lease for a long term, and soon after the lease expired the new lessees proceeded to pull down and demolish the old premises. Notwithstanding this fact it was held by the Court of Common Pleas that the landlord was not limited to a nominal recovery, but was entitled to substantial damages. ‘It is true,’ said Mr. Justice Byles, ‘the plaintiff has since parted with the reversion; but he still may have sustained damage from the nonrepair of the premises. It may be that they sold for a less sum in consequence of their dilapidated condition, or the plaintiff had a narrower market. If the...