Ward v. Kelsey , 42 Barb. 582 ( 1862 )

By the Court,

Lott, J.

It was provided by the lease, referred to in the complaint, that the defendant should do all necessary repairs upon the demised premises within a reasonable time after notice to him by the plaintiffs requiring him so to do; and the plaintiffs were entitled to recover from the defendant all moneys expended by them in making such repairs upon the neglect of the defendant to make the same after due notice. But I am of opinion that the learned justice, before whom the case was tried, erred in allowing evidence to be given as to damages sustained by the plaintiffs while the hoist-wheel was being repaired.

[Orange General Term, September 8, 1862.

. The parties evidently contemplated that certain repairs would become necessary during the term (ten years) for which the property was rented, and, as a necessary consequence, that there would be some interruption to, or interference with, the business carried on. The obligation assumed by the defendant, to make the repairs, gave him the right to interfere with the plaintiffs1 enjoyment of the property, so far as the making of such repairs rendered it necessary, and the plaintiffs can not complain of any injury resulting from the performance of that obligation. The case is not altered by t-he fact that the defendant failed to discharge his duty in that respect, and that the plaintiffs themselves, in consequence thereof, made the repairs needed. The interruption to their business was not increased by the defendant’s default. It is not to be presumed that the plaintiffs occupied more time in doing the requisite work than the defendant would have done; and if they did, they would have no just claim for charging their want of diligence to the defendant. I see no reason, and am not aware of any principle, which will justify an allowance of such damages; and I refer to the cases of Green v. Eales, (2 Adolph. & Ellis, N. S. 225,) and- Thompson v. Shattuch, (2 Metc. 615,) to show that they are not recoverable. The verdict was general, and there are no facts disclosed which will warrant us in the conclusion that those damages were not allowed.

The judgment must, on the ground of the admission of that evidence, be reversed, and a new trial is ordered; costs to abide the event.

Bhnott, Brown, Scrughcm andZott, Justices.]