Opinion
October 4, 1907.
R.M. Cahoone, for the appellants.
Charles S. Carrington, for the respondent.
The Justice gave judgment for the defendant on the ground that "there is no proper proof in this case as to damages". The notion seems to have been that the measure of damages was the difference between the rental value of the place with and without the agreement for heat, hot water and steam being kept. If this were so, the evidence of falling off of customers and receipts was competent to show a decline in rental or usable value and the extent of it, according to the case of Reisert v. City of New York ( 174 N.Y. 196). But the measure of damages was the falling off in receipts, less the value of any food of the day that could be used thereafter. The net profit is not the measure of damages, for all of the expenses of the plaintiff, which had to be paid out of the receipts, went on, and they might exceed the net profit. The rule of the seed cases is applicable. The crop failing, the expense of labor and money put into it has to be included in figuring up the damage, as well as the net profit ( White v. Miller, 71 N.Y. 118). The rule that the measure of damages for breaches of contract includes gains prevented and losses sustained has not been affected by the decision in Witherbee v. Meyer ( 155 N.Y. 446). That decision only reiterates the limitations of the rule, i.e., the damages must be such as may be made reasonably certain by evidence, and must have been in the contemplation of the parties in making the contract.
The judgment should be reversed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.