#### ADELAIDE M. De LAVALETTE, Respondent, *v.*FREDERICK B. WENDT, as Executor of DAVID M. PEYSER, Deceased, Appellant.

*Mveesme damages*— power *of General T&rni as to.*

Where a motion for a new trial is made upon the ground that the damages given are excessive, the court, at General Term, should, if satisfied that such is the case, *ex debito jusiitim,*require that the judgment he reversed, and grant a new trial, even though there be doubt as to whether or not any exception was taken by which the error in the charge of the court below, from which such excessive damages resulted, was distinctly pointed out.

*433Appeal from a judgment in favor of tbe plaintiff entered on tbe verdict of a jury, and from an order denying a motion for a new trial entered upon the minutes of tbe justice before whom tbe action was tried. This action was brought to recover for damages resulting to plaintiff from an alleged breach, by defendant’s testator, of a contract for board and lodging. Tbe evidence tended to show that plaintiff rented to defendant’s testator certain rooms, and agreed to board bis family from September 1,1866, to May 1,1867, for $150 a week.

*Qhmies Wehle,*for tbe appellant.

*Albert Stiekney,*for tbe respondent.

Brady, J.:

Tbe plaintifE in this action seeks to recover damages, sustained by her in consequence of tbe testator’s violation of bis agreement with her, and by which be engaged board and lodging for himself and family from tbe 1st September, 1866, to tbe 1st May, 1867. Tbe testator paid under tbe contract until tbe 4th December, 1866, but tbe rooms which be bad engaged were not relet until tbe 21st December, 1866, when they were taken at $125 per week, by a family larger than that of tbe testator. Tbe terms of the agreement was tbe subject of conflicting evidence, and a due bill given by tbe plaintiff to tbe testator, for tbe sum of $500, and a release said to have been executed by her to him, were also contentions upon tbe trial. It was claimed on tbe part of tbe defendant that tbe due bill was a loan, and by tbe plaibtiff that it was in fact a payment. It was alleged by tbe defendant that tbe release was duly executed and fully understood by tbe plaintiff, while she declared that it was designed only to release tbe property of tbe testator, which she held by virtue of her ben or right of action, created by tbe contract made with him. Evidence which was conflicting, was given in relation to these instruments, and tbe issues thus created were submitted to tbe jury in tbe usual way. No exceptions were taken upon tbe trial, which require examination, and tbe exceptions to tbe charge, and to tbe requests to charge, do not, save one, require any other notice than tbe statement that due examination and eonsidera*434tion of them has failed to impress the duty of granting a new trial. The rules of law applicable to the case in all respects, with the single exception referred to, were fully, correctly and clearly stated, and the complications arising so explained to the jury, that the sub-emission by the justice presiding was unexceptionable. The error to which allusion is made is in reference to the rule of damages. The learned justice, at the beginning of his charge, expressed the rule properly, and as follows:

*“*The Supreme Court in this State, in a case very similar to this, many years ago decided, that a landlord who had let rooms, was not entitled as matter of course to recover from the tenant who had violated his contract, and abandoned the rooms, the whole price stipulated to be paid for the use of the rooms, to the end of the period specified in the contract, but only for such damages as had directly and necessarily resulted from the breach of the contract, and that the plaintiff could not refuse to rent the rooms to other lodgers, leaving them idle, and then recover against the defendant, as for use and occupation; that although one party was chargeable with a breach .of the contract, the other party had no right to conduct himself in such a manner as to make the damages unnecessarily burdensome.” *(Wilson*v. Martin, 1 Denio., 605; *Mary A. Wetmore*v. *J. Hamilton Jaffray,*16 N. *Y.*S. C. R., 140.)

There was no exception to this part of the charge. In concluding the charge, however, the learned justice said: If she is entitled to recover, she is entitled to recover from the 4th of December, 1866, to the twenty-first of December, at the rate of $150 a week, because it does not appear that she did or could let the rooms during that period, and the amount as computed by the witnesses, and not disputed, would be $514.28. She is entitled to recover, if she is entitled to recover at all, from the 21st of December, 1866, to the 1st of May, 1861, at the rate of twenty-five dollars per week, that being the difference of price that Peyser had agreed to pay, and the price which Block actually did pay, and that would amount to $464.28, which would make the principal sum of $918.56. If she is entitled to recover at all, she would be entitled to recover interest on that sum, which would be $862.92, making the total amount of the claim $1,841.48, and in that part of this expression of the law of damages, relating to the time the rooms engaged were occupied, it will be seen *435that he was in conflict with what was stated at the beginning of the charge, because $150 a week was the whole price, and not therefore the damages. If the testator and family had occupied the rooms, and had received their board, the plaintiff would not have been entitled to more than $150 a week, and her damages could not for the period be such a sum, because the board would necessarily have involved expenditures in its procurement, and in its preparation. There was not however, any exception at this point interposed to this view. Subsequently the court, in answer to a request, said, among other things : *“*If the plaintiff is entitled to recover at all, she is entitled to recover $1,841.48, as I have already stated to you.” The defendant excepted generally to what the learned judge said, and now claims that it was designed as an exception to all that was said, and which would include the erroneous rule of damages, because the sum mentioned was made by allowing the $150 per week for the period during which the premises were vacant. It is insisted by the plaintiff that the exception is worthless, because it did not select the reference to damages from the rest of the matter, and did not therefore point out, with sufficient particularity, the item objected to.

In the result it will make no difference whether the plaintiffs view be correct or not. This court has the power to correct a judgment, when the damages are excessive *(Cassin*v. *Delany,*38 N. Y. Rep., 180), and when an improper rule has been stated, and a motion is made for a new trial, on the ground that the damages given are clearly unauthorized, the court *m débito justitim,*may require that the amount be reduced, or direct that a new trial be granted, even, although there be doubt as to whether an exception was taken. In the case of *Wehle*v. *Haviland*(42 How. Pr. Rep., 409), the damages were declared to be excessive on well established rules, and the court directed a new trial, unless the excess was remedied. (See also *Finch*v. Brown, 13 Wend., 601.)

This was done, because when it clearly appears that a wrong has been done, the court should not ratify, but correct it. In this case it does clearly appear that the damages allowed for the period from the third to the twenty-first December were erroneous. We can not' direct a reduction, because no facts were shown from which the damages for the period could be ascertained. The whole sum given must therefore be deducted or a new trial must follow. It is not’ at *436all certain tbat tbe interest allowed on tbe principal was properly calculated, but as that may be corrected when tbe deduction suggested is made, it is not necessary to consider tbe matter further. Tbe result of this review is tbat tbe sum of $514.28, and tbe interest allowed must be deducted from tbe amount recovered or a new trial is ordered.

' We think tbat tbe defendant not having distinctly pointed out tbe error should not be allowed tbe costs of this appeal, if the deduction be made. If tbe deduction be not made, tbe costs are to abide tbe event. If tbe deduction be made, tbe judgment is in all other respects affirmed as to costs allowed as well.

We do not feel warranted in interfering with tbe order made at tbe Circuit on the subject of costs.

Tbe order to be entered to be settled by Justice Beady.

Davis, P. J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Judgment reversed, new trial ordered costs to abide event, unless plaintiff stipulate within twenty days after service of order to deduct $514.28 and interest from tbe amount recovered, in which case judgment modified accordingly and affirmed as modified, without costs to either party on this appeal.