SUPREME COURT.

#### Christian Cook, appellant, agt. Nathan Soule *et*al., respondents.

*Fourth Department*

*Argued at April*Term, *Rocheste*r

*decided June*Term,, Buffalo, 1873.

A *tenant*may set up, by way of counter-claim, in an action by bis landlord against him to recover rent, damages sustained by him by reason of the neglect and refusal of the landlord to perform and fulfill his agreement to keep the premises in repair.

The tenant may also elect to make the necessary repairs on the demised premises, and recover of the landlord the expenses thereof.

Where the tenant makes partial repairs he is not confined in his recovery to the expense thereof exclusively, but may recover for other damages sustained before and after such partial repairs.

As a measure of damages the tenant is entitled to prove the difference between the value of the premises as they actually were, and as they would have been, if kept in repair by the landlord according to his agreement. Such an agreement is in the nature of a warranty, and the principle applicable to damages on a warranty apply to it.

The tenant is not entitled to recover damages, to his property and also the difference in the value of the premises, both, but may elect either rule. A party entitled to damages, where different rules for measuring damages exist, may give evidence tending to establish the amount according to either rule, leaving the jury, under proper instructions, to select that which is most just and reasonable.

Present—Mullís, *P. J.,*Taloott *and*E. Darwin Smith, *JJ*

Appeal from a judgment for the defendants rendered on verdict in the Onondaga county court, and from an order denying a new trial in that court.

Irving GL *Yaws, for appellant.*

*341This action was brought in the county court of Onondaga county to recover $105, being a balance due plaintiff from defendants for rent. The defendants plead a general denial and also a counter-claim for damages for a violation of an alleged agreement to repair, and for work done and money paid by them in making the repairs which they claimed the plaintiff should have made.

* The testimony was conflicting as to whether the plaintiff ever agreed to keep the premises in question in repair or not. The plaintiff swore that he never made any such agreement, and that, in fact, he never leased said premises to the defendants at all. It was shown that the plaintiff, on the lltli day of August, 1864, leased said premises to Samuel Rooney for five years from the 1st day of May, 1865, and that the defendant, Rathan Soule, was in possession as assignee under said lease when the same expired May 1st, 1870.

At this time the plaintiff had already leased the premises to-another person, but Soule claimed that he had rented them of plaintiff for one year longer by a verbal lease, and he refused to give up possession. The plaintiff, who claimed that he had not leased the premises to Soule, thereupon instituted summary proceedings to recover possession, and the matter was tried on the 7th of May, 1870, before judge Reigel, who decided in favor of Soule.

Soule and his partners occupied the premises under this verbal lease thus forced upon the plaintiff for the year commencing May 1st, 1870, and ending May 1st, 1871. The rent, Which was at the rate of $500 per year, payable quarterly, was all paid, except for the last quarter, and twenty dollars was credited upon this by way of a shed sold plaintiff by defendants. This action was brought to recover the balance due for the last quarter’s rent, amounting to $105.

The plaintiff, in order to make out his cause of action, introduced the evidence of Soule, as given by him in the proceeding to recover possession before judge Reigel. Upon *342that occasion Soule undertook to state the conversation between plaintiff and himself at the time that the bargain for the new lease was made; and although he was asked to give the whole conversation, he said nothing about any agreement to put or to keep the premises in repair. Upon *this*trial, however, Soule swore that in the same conversation above referred to the plaintiff agreed “ to put the buildings in good repair and keep them so.” y

This action was at first brought in justice’s court, but after a partial trial was discontinued. Upon *that*trial Soule claimed to state this same conversation, and he then said that the plaintiff agreed to “ put the premises in suitable shape.” The plaintiff denied all this, and no other witness Was sworn as to the original bargain, although the defendants had a witness (Orcutt) in attendance at the trial, who had been sworn for Soule in the proceeding before Reigbl, and who was present at the time that the bargain was claimed to have been ■ made.

The defendants swore several witnesses, whose evidence tended to show that the premises were out of repair and that * the water leaked through the roof on the wagons, &c. They were allowed to show, under objection, the condition of the premises at all times during the continuance of the alleged lease, both before and after the commencement of the last quarter, for which alone the rent was unpaid. The defendants repaired the premises and sent a bill to plaintiff for the expense of the repairs.

The court charged the jury that the measure of damages was the difference between the value of the premises as they were and as they would have been had they been kept in ■repair.

Also, that if the jury found the damages were greater than the rent due, that they should find a verdict in favor of the defendants for the excess.

When a tenant seeks to recover damages of his landlord for, a breach of covenant to repair, and such breach is shown *343to have been in part an omission to mend a leaky roof on a livery stable, it is error for the court to allow evidence to be given as to what property was injured in consequence of leakage from the roof, or as to the effect of the water leaking down upon such property, or that such property was of much less value on account of the leakage, or that because of the leakage there were times when the tenant could not use such property.

If the right measure of damages was as charged by the court, viz., the difference between the value of the premises as they were and as they would have been had they been kept in repair, then all this evidence was improper.

Such damages were not the *natural a/nd proximate consequence*of the act complained of *(Greenleaf’s Ev., vol.*2, § 256, *and cases cited).*

It is not reasonable to suppose that such damages entered into the contemplation of the parties at the time of the contract (Se*dgwick on Meas. of Dam.,*67, *and cases cited).*

Such effects were too remote to be taken into account in extenuating the damages.

The evidence was calculated to, and obviously did mislead the jury, for their verdict was not in accordance with the estimate of any witness as to the value of the premises as they were and as they would have been in a state of repair *(See Ward, &c.,*agt. *Kelsey,*42 *Barb.,*582).

All of this evidence should have been excluded upon *each*of the numerous grounds stated in the various objections.

It was also error for the court to allow evidence to be given as to the injury to the horses, and as to what was done with • the horses when they could not be kept in the barn, and that it was unsafe to keep the horses in the stalls. This is too obvious to require any argument.

The defendants in this action having elected to repair the premises in question, the measure of damages was the actual cost of the repairs, with interest to the date of the'recovery *'• '(Darwin*agt. *Potter,*5 *Den.,*306; *Blanchard*agt. *Ely,*21 *344*Wend.,*342; *Briggs*agt. *Dwight,*17 *id.,*71; *McCleary agt. Edwards,*27 *Barb.,*239; *Thompson*agt. *Shatwick,*2 *Web.,*615; *'Burhard*agt. *Babeoelc,*17 *Abb.,*421; *McClowry*agt. *Croghan,*31 Penn. Stat., 22).

In all cases of breach of such contracts as the one in this case, if the party injured can protect himself from damages at a trifling expense or by any reasonable exertions, he is bound to do so, and he can charge the delinquent party only for such damages as by reasonable endeavors he could not prevent *(Miller*agt. *Mariner’s Church,*7 *Green.,*57; *Laker*agt. *Damon,*17 *Pick.,*284).

The common law throws the burden of repairs as much as possible upon the tenant. Enjoying the benefits, he should bear the inconveniences. It would be unjust that the expense of accumulated damages should fall upon the landlord when a small outlay on the part of the tenant would have prevented any such expense being necessary *(Taylor’s Landlord and Tenant,*§ 327).

It appears by undisputed evidence that the defendants in this action repaired all the bastions of the building complained of; that they sent a bill to plaintiff therefor, which bill largely exceeded the entire cost of a new roof.

It further appeared that the roof, which was the chief cause of complaint, leaked on but one side; but no one seems to have ever seen a leak in the roof or to be able to tell in how many places it leaked. A slight expense would have fixed it, and Soule, who swore that the premises were worth but little as they were, was very anxious to renew the lease, and got third parties to try and persuade the plaintiff to let him have the stable again. The rent seems to have been paid ■regularly, without any complaint, until after the defendants ascertained that they could not have the premises any longer.

ISTo damages can be recovered for that part of the year for which the rent was paid without objection and without complaint.

When a party to an action, whose memory is not good, has *345stated under oath the conversation in which he claims a contract was made, in stating that conversation for the third time varies it so materially as to change its nature and extend its effect in an important particular, to his own advantage, a jury will not "be justified in finding a fact based wholly upon such evidence.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

I. D. Garfield,/br *respondents.*

This action was commenced in the county court of Onondaga county.

The complaint claimed judgment for $105, balance of rent, alleged to be due plaintiff by defendant.

The answer was:

*First.*A general denial.

*Second.*An allegation that the defendant Soule and one Milliman leased the premises of plaintiff for the term of one year from May 1,1870, for the sum of $500, upon the further agreement that plaintiff should put and keep said premises in good repair; that before May 1, 1870, Milliman assigned his interest in said lease to one Brewster, who entered upon the enjoyment of said term with said Soule; that thereafter and about July, 1870, said Brewster assigned his interest in the lease to one Hayden, who entered into possession with said Soule, and afterward assigned his interest to Bishop, the other defendant.

The answer then avers a breach of the agreement to repair, and claims damage on account thereof, by way of counter-claim.

*Third.*The answer also alleges a set-off.

*Fowrth.*The answer alleges an assignment by all the assignors of the lease to the defendants of the damages sustained by them on account of the failure to repair.

*346The contract as set forth in the answer was proved upon the trial.

The defendants also proved that the buildings were out of repair at the commencement of the lease, and that the plaintiff refused to repair them.

The defendants proved that the premises, in the condition they were in, were worth only $200 per year, while if they had been put and kept in good repair they would have been worth $500 per year.

The jury found a verdict in favor of the defendants for $90.50.

From the judgment entered on the verdict the plaintiff appealed to this court.

I. The court properly charged the jury, that if they found the contract to repair was made, as alleged by defendants, and that plaintiff failed to perform it, then the defendants were entitled to damages, to the difference between the value of the premises as they were and as they would have been had they been kept in repair *(Berrien*agt. *Olmstead,*4 *E. D. Smith,*279; *Myers*agt. *Burns,*33 *Barb.,*401; *Beach*agt. *Crain,*2 *Com.,*86; *Myers*agt. *Burns,*35 *N. Y.,*269, *Aff. g.,*33 *Barb.,*401; *Mills*agt. *The Guardians of the Poor, and the Law Reports, part*2, *of February*1, 1873, *page*61).

The tenant has his option to make the repairs himself and recover from his landlord the expense incurred, or he may omit to make the repairs himself, and seek his remedy by an action for the damages.

In this case the landlord promised from time to time to make the repairs, and the tenants had the right to rely upon his promise.

Cook, the plaintiff, testifies that he made the repairs, and if they were made negligently, then the rule is beyond question that the landlord is liable to damages, according to the actual loss to the tenant.

II. The damages sustained by the tenant are a proper subject for counter-claim in an action by the landlord for the rent, *347when such damages arise from a breach of the landlord’s covenant or agreement to repair *(Waterman, on Set-off,*592; *Myers*agt. *Brown,*33 *Barb.,*401; *Ayers*agt. *O'Farrell,*4 *Rob.,*668).

The term counter-claim includes recoupment and set-off, and something more; it embraces all sorts of claims which the defendants may have against the plaintiff in the nature of a cross-action or demand *(Waterman on Set-off, &c.,*308, 611).

III. The plaintiff excepted to that portion of the charge in which the'court charged the jury that if the defendants’ damages exceeded the amount due the plaintiff, then the defendants were entitled to a verdict for the difference.

This exception was not well taken *(Davidson*agt. *Remington,*12 *How.,*310; *Ogden*agt. *Coddington,*2 *E. D. Smith,*317; *Boston Silk and Woolen Mills*agt. *Eull,*6 *Abb., N. S. R.,*399; 37 *How.,*299).

IV. The exceptions were not well taken.

There was no greater obligation resting upon the defendants to call Orcott than there was upon the plaintiff.

V. 1. The exception taken by plaintiff was not well taken if the rule of damages adopted was correct.

2. The evidence, which was given under objection, was competent to show the barn out of repair.

3. The other exceptions are to the same class of evidence, and afford no cause for a reversal of the judgment.

The judgment should he affirmed.

*By the Gowrt,*Talcott, J.—This

action was commenced to recover rent, claimed to he due from the defendants to the plaintiff for the rent of a certain building occupied as a livery stable. The defendants set up, by way of counter-claim, damages, sustained by them by reason of the neglect and refusal of the plaintiff to perform and fulfill that part of the agreement which hound him to keep the premises in good and sufficient repair during the term. That this may be *348done is settled by the case of *Myers*agt. *Burns*(33 *Barb.,*401), affirmed in the court of appeals (35 *N. Y.,*269).

The same case also shows that the tenant, in such a case, may elect to make the necessary repairs and recover of the lessor the expense thereof, or may recover of the lessor the damages sustained in consequence of the breach of the agreement to repair. In this case the tenants made some partial reparations; and they also gave evidence, against objections, as to the damages sustained by their property on the premises in consequence of the breaking down of the floor from the rottenness of the joists, and also from leakage. The plaintiff, amongst other things, claims that, having neglected to make the repairs, the defendants should be confined, in their recovery, to the expense incurred thereby. Of course, this can only apply to the particular repairs made by the tenants, and cannot debar them from recovering for the damages sustained before the repairs were made, or for damages sustained by other defects not embraced by the repairs which they saw fit to make. The plaintiff made numerous objections to the evidence tending to prove the damages sustained; many of which objections were overruled. The only reason now offered to show that the objections were well taken is that the damages were too remote. The evidence tended to show the_ injury to the property of the tenants, which, it was contemplated by the parties, would be necessarily and properly kept in the building in the prosecution of their business, by reason of the leakage of the roof, and the expense of temporarily having some horses stabled at another place in consequence of the untenantable condition of the premises.

We do not think such damages are too remote. That the property of the tenants of the particular description disclosed by the evidence was to be kept in the building, that it was essential that it should be secured from the elements, and that the keeping of the premises in proper repair as against the elements, and as against the falling of the floors by decay, must have been in the contemplation of the parties.

*349The damages claimed are not so remote as those allowed in the case of *Myers*agt. *Burns (supra),*where the tenants were allowed to recover, by way of counter-claim,.the amount which they would have been able to realize from the renting of rooms in a hotel, which rooms were untenantable by reason of leaky flues. We think the evidence was admissible to go to the jury; they to determine whether the damage was the natural result of the neglect to repair.. The defendants were allowed to prove the value of the use of the premises if kept in repair according to the agreement, and such value in the condition in which they were actually suffered to remain; and the county j udge charged the jury, *“*among other things,” that, *“*if the agreement was made, and the plaintiff' failed to keep it, the defendants were entitled, as damages therefor, to the difference between the value of the premises as they were, and as they would have been if kept in repair.”

We can see no reason why another measure of damages, besides those specified in the case of *Myers*agt. *Burns,*namely, the difference between the value of the use of the premises in the condition in which they actually were and that in which they were agreed to be kept may not also be proper.

It is very similar to the question presented on a warranty, where it is settled that the measure of damages is the difference between the property as it actually was and as it was warranted to be. The agreement to keep the premises in good repair is in the- nature of a warranty that they shall be so kept. Of course, the defendants were not entitled to recover the damages to their property and also the difference in the value of the premises; and it is to be presumed the jury was properly instructed on this point, and was told that they might take either rule as the measure of the dam: ages, but could not allow both. We do not see why a party, entitled to damages, where different rules for measuring the damages exist, may not give evidence tending to establish the amount according to either rule, leaving the jury, under *350proper instructions, to select that which is most just and reasonable in the particular case. Such instructions, we must presume, were given in this case.

We must all assume that all the disputed questions of fact were properly disposed of by the jury under proper instructions ; and we discover no reason for disturbing the judgment upon any of the grounds to which our attention has been called by the plaintiff’s counsel.

Judgment affirmed.