#### Lizzie Price, Respondent, *v.*Fischel Eisen, Appellant.

(Supreme Court, Appellate Term,

May, 1900.)

lease — Measure of damages for lessor’s refusal to deliver possession.

Where a lessor refuses to deliver possession of a demised store to his lessee, her damages are the difference between the rent reserved and the rental value; and no damages are recoverable for loss on ordinary store fixtures which the lessee-bought without the knowledge of the lessor, nor for a loss on goods which she bought to sell, but was precluded from selling.

Appeal from a judgment, rendered in favor of the plaintiff, in. the Municipal Court of the city of Sew York, fourth district, borough of Manhattan.

Albert J. Wise, for appellant.

Leopold W. Harburger, for respondent.

O’Gormae, J.

We think the judgment should not be permitted to stand, for two reasons; first, the learned trial justice erred in the rule of damages which he applied, and secondly, even if he were correct in that respect, his findings are not supported by competent proof.

This action is brought to recover damages alleged to have been sustained by the plaintiff in consequence of the defendant’s refusal to deliver possession of a store leased by him to the plaintiff. The store in question was a small one, renting for thirty-three dollars a month, in which the plaintiff intended to conduct the business of candy, cigars and soda water. Upon the trial the damages were assessed at one hundred and twelve dollars and ninety-four cents, made up as follows: Loss on bar, back bar, tables, etc., seventy dollars; on gas fixtures, seven dollars; on cigars, thirty dollars and ninety-four cents; deposit for rent, which was not returned, five dollars. The plaintiff’s proof, respecting the cigars, was that she made a deposit of thirty dollars and ninety-four cents upon a bill of goods which she was unable to use in consequence of her inability to obtain possession of the store. The only evidence, respecting the other items, is the difference *458between the price paid for them by the plaintiff and the price at which she sold them after the refusal of the defendant to give her possession of the store. This evidence is clearly insufficient to sustain a finding of damage. There was no competent proof that the prices paid were reasonable or proper, or that she exercised reasonable vigilance to obtain fair value on their sale. While the price paid is admissible as an element in proving damage, it is not sufficient, standing alone, to sustain a verdict. It must be supported by other proof. Volkmar v. Third Ave. R. R., 28 Misc. Rep. 141, 58 N. Y. Supp. 1021. In no aspect of the case was the item of loss on the purchase of cigars allowable. Waiving this infirmity in the proof, however, the items in question should not be considered in determining plaintiff’s damage. Friedland v. Myers, 139 N. Y. 432, does not support plaintiff’s contention. There, the premises required peculiar fixtures and improvements, and, with the knowledge of the defendant, an architect was employed to furnish the drawings and. specifications for the same, and the court held that the expense thus incurred' was within the contemplation of the parties, and fixed the liability of the defendant. In this case, the demised premises were the ordinary one-half store in a tenement building, rented for a single month, and the only fixtures procured were such as could easily be obtained in the open market, at any time, without a day’s delay. As was said by the court, in Friedland v. Myers, *supra,*in speaking of the stock of goods purchased by the plaintiff in that case: *“*This purchase in advance was not necessary in order that plaintiff might have the benefit of the full term in his business. The market, or place of purchase, was in the same city, and the plaintiff would have sustained no special loss if he had deferred their purchase until he had acquired possession. They could have been delivered on the same day when ordered, or the following day, in the usual course of the trade and no material delay would have resulted.” Moreover, it does not appear that the defendant knew, or had any reason to anticipate, that these purchases would be m,ade by the plaintiff in advance of taking possession of the store. It cannot, therefore, be claimed that such purchases were within the contemplation of the parties at the time of the alleged hiring.

The plaintiff should have been confined in her recovery to the difference between the rent reserved and the rental value of the demised premises. Eo proof whatever was offered upon this point, *459and the only item, therefore, that the plaintiff could claim in this action was the recovery of the five dollars, the amount of the deposit paid to the defendant and not returned.

Judgment modified hy reducing the judgment to five dollars, and as modified, affirmed, without costs to either party.

Beekman, P. J., and Giegerich, J., concur.

Judgment modified, and as modified, affirmed, without costs.