Opinion
May, 1908.
Wingate Cullen, for appellants.
Adolph Ruger, for respondent.
These actions were tried together, under a stipulation, and were brought by plaintiff to recover damages for breach of a contract for board and lodgings. Plaintiff claimed that, in consideration of a special rate of $30 per week for defendant Thompson, and $35 for defendant Hamlin and wife, the defendants engaged rooms and board at his boarding-house for the season from June 1 to October 1, 1907; that they entered into possession by placing their belongings in the rooms on June first, but failed to appear in person until June fourteenth, and voluntarily and without cause left their rooms shortly before the first of September, and have failed and refused to pay for either the two weeks in June or for the month of September; that plaintiff was unable to find any other person to occupy their rooms, and in consequence sustained a loss, in the case of the defendant Thompson of $180, and in the case of the defendant Hamlin of $210, for which the trial court has given plaintiff judgments. The defendants deny that they agreed to pay for the time that they did not occupy the rooms at plaintiff's boarding-house, and claim that they have paid in full for board and lodging. Accepting the facts to be as claimed by the plaintiff, we are of opinion that the court below failed to apply the proper rule of damages. The plaintiff is only entitled to the loss of profits which resulted from the failure of defendants to complete their contract. This would be the difference between the contract price and the cost to plaintiff of boarding the defendants had they remained during the period in suit, which cost to plaintiff was saved by the absence of defendants from plaintiff's premises. Wilkinson v. Davies, 146 N.Y. 25. There is nothing in the evidence upon which to base even a remote estimate of such cost, which failure of proof requires a new trial.
Present: GILDERSLEEVE, GIEGERICH and GREENBAUM, JJ.
Judgments reversed and new trial ordered, with costs to appellants to abide event.