Opinion
Argued October 6, 1932
Decided November 22, 1932
Appeal from the Supreme Court, Appellate Division, Second Department.
Avel B. Silverman and George L. Naught for appellants.
Eugene Morgan Hawkins and William L. Tierney for respondent.
In summary proceedings, instituted by the plaintiff landlord against the defendant tenant, Harold Thomas, a final order dispossessing the tenant and awarding to the landlord the possession of the rented premises was obtained. The tenant appealed to the Appellate Division, and procured an order staying the execution of the order of dispossession until the determination of the appeal, upon the filing of an undertaking, conditioned upon terms prescribed by that tribunal. Such an undertaking, executed by the defendant Harold Thomas as principal, and the defendant American Surety Company of New York as surety, was subsequently filed. By this instrument the defendants undertook, in a sum not to exceed $5,000, that "if said appeal be dismissed or determination is rendered against the appellant, he will pay any costs and damages and any damages or loss which may * * * have been occasioned through or because of the petitioner herein being kept out of possession and the value of the use and occupation of the premises subsequent to the institution of the special proceeding." The order of dispossession was affirmed on the appeal and this action was then brought upon the undertaking. After a trial of the issues at Special Term, that court made a decision, finding that the damages suffered by the plaintiff and recoverable by him aggregated the sum of $1,500, and judgment followed accordingly. The items, entering into the total damages found, though not separately determined, were three in number. Item One. This was a charge for "the value of the use and occupation of the said premises subsequent to the institution of the special proceedings." The value was conceded to be $50 per month and the total sum was readily calculable. Item Two. This consisted of "the damages and costs of the plaintiff." As we conceive it, the undertaking in providing for the recovery of such an item made provision for none other than the payment of taxable costs and disbursements. As no proof was given that costs had been taxed in any particular sum, this item should not have entered into the recovery. Item Three. This consisted of "damages or loss which were occasioned through or because of the plaintiff being kept out of possession." The only proof given in support of this item was that the plaintiff had employed counsel in the dispossession proceedings and that their services were of a value in excess of $3,000. We do not think that the charges for counsel fees constituted damages which have been occasioned "because of the petitioner herein being kept out of possession," within the meaning of the undertaking. They did not arise from the fact that the plaintiff was temporarily deprived of possession; rather, they resulted from the legal steps resorted to by the plaintiff to regain possession. We think that the undertaking was intended to secure the plaintiff only against a natural loss which might have accrued through non-possession; not against a loss resulting from an artificial means resorted to in order to replace him in possession. The trial judge was clearly in error when he incorporated in the total damages found the item for costs and disbursements which had not been taxed, and the item for counsel fees.
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event. (See 260 N.Y. 698.)
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN and HUBBS, JJ., concur; CROUCH, J., not sitting.
Judgments reversed, etc.