#### Jacob Shultz and Frank D. Zimmer, Respondents, *v.*Christian Brenner, Appellant.

(County Court, Oneida County,

September, 1898.)

Damages — Measure of — Contract.

The measure of damages in an action for failure to perform a contract. to rent certain premises is the difference between what the place was worth per month and the rent agreed upon during .the period of time fixed by the agreement.

Time spent by the tenant in securing other premises forms no part of the damages.

This is an appeal from a judgment rendered before John F. Rogers, a justice of the peace of the city of Utica, on the 15th day of March, 1897, in .favor of plaintiffs for $22.65 damages and costs. The action was brought to recover damages against defendant for' his refusal to put them in possession of a house and lot in the city of Utica, which plaintiff claims to have rented from him. De-. fendant denied that the contract was made, and claims- that the justice adopted an incorrect rule of damages.

R. O. Jones, for appellant.

Edward Lewis, for respondents.

Dunmore, J.

The alleged contract was by parol, and thé only evidence given upon the trial on the part of the plaintiffs as to its terms was given by the two plaintiffs. Plaintiff Zimmer testified as follows-: *“*I asked Brenner about renting the house on Flickory street. He said he would rent it to - us. if • we could agree on the rent. He asked $10 a month. I offered $8. He said he would take $9 to May 1, 1897, then $10. I spoke about city water, and *523he said he would put it in in Hay, 1897. I saw and went through the house. Defendant said our living together was satisfactory. Shultz said he was satisfied with the rent as agreed upon. I said we would want to take possession February 15, 1897, and he said we could find the key at Ricks’. I asked him if he wanted any writings and he said it wasn’t necessary. The rent was to be paid at the end of each month.”

Plaintiff Shultz testified as follows: *“*We went up to see Bren‘ner. We were to pay one-half each of the rent. ' Brenner asked us in and said he asked $10. We offered $8. He said we could have it till Hay 1, 1897, for $9 a month and balance of year at $10, and he would put in city water. We told him we would take possession February 15, 1897.”

There is no evidence as to the length of time that plaintiffs agreed to take the place nor any evidence as to the length of time that de- ' fendant agreed to let it to them, so that the terms of the contract would have been satisfied had the defendant permitted the plaintiffs to take possession of the house and occupy it for one month. Plaintiffs, therefore, cannot recover damages for a period beyond the time for which they had a right under their contract to retain possession of the premises.

The measure of damages in such actions as this is the difference between the value of the premises and the rent reserved. Coleman v. King, 19 N. Y. Week. Dig. 551; Dodds v. Hakes, 114 N. Y. 260, 265; Trull v. Granger, 8 id. 115.

*“*The damages must of necessity be limited to the value of the right as given by the lease of which the lessee has been deprived.” Eastman v. Mayor, 152 N. Y. 468, 473.

The evidence showed that the place was worth $12 per month. The difference between that and the rent reserved, $9 per month, was $3, which was the utmost plaintiffs were entitled to recover upon the trial. The plaintiffs had a verdict, however, of $18. The damages were, therefore, clearly excessive. Upon the trial plaintiffs were allowed to prove against defendant’s objection that they éach spent three days looking for other premises, one of them with a horse, and one testified that bis time was worth $3 per day and the other that his time was worth $2 per day. While it does not appear how the $18 verdict was made up, yet had the justice allowed one of the plaintiffs $3 a day for three days, the other $2 a day for three days and $3 damages for one month’s occupancy it would amount to the $18, the amount of the verdict, and the verdict *524may have been made up'in that way. The evidence of the time spent by the plaintiffs and the value of their services in looking up other premises was incompetent and its admission was error. Coleman v. King, 19 Week. Dig. 551; Dodds v. Hakes, 114 N. Y. 260, 265; Trull v. Granger, 8 id. 115; Eastman v. Mayor, 152 id. 468, 473.

As the damages proven were insufficient to amount to the verdict without the damages claimed for the time of the plaintiffs in looking rip other premises, the natural inference is that the time of the plaintiffs was included, and that inference may be properly drawn from the return. It has been held that where improper testimony is received which not only may have influenced the judgment but which the return in terms- states was tahen into consideration in finding the facts, the Appellate Court cannot disregard the error, although there appears to be evidence in the cause which would have been sufficient to sustain the same finding had. the illegal testimony been rejected. Belden v. Nicolay, 4 E. D. Smith, 14.

We think the same conclusion would follow where it appears that the illegal evidence must have been taken into consideration in order to make the damages equal the amount of the verdict.

For the reasons given the judgment must be reversed, with costs.

"Judgment reversed, with costs.