(90 Hun, 508.)

#### BUHRMASTER v. AINSWORTH.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Landlord and Tenant—Wrongful Eviction—Damages.

Where a landlord wrongfully entered on the leased premises, and filled with ice an ice house which the tenant was preparing to fill, the tenant is not entitled to recover either for services in procuring men to fill the ice house, and in notifying them, after the eviction, not to come, or for the difference in value at the time of the eviction and at the time of the trial of ice sufficient to fill the house.

2. Same—Trespass—Damages.

Where a landlord wrongfully took possession of an ice house on the leased premises, and filled it with ice, the tenant, in an action for the trespass, may recover the cost of removing the ice. Herrick, J., dissenting.

Appeal from Schenectady county court.

Action by John F. Buhrmaster against Nelson Ainsworth. A verdict for 125 was rendered in favor of plaintiff, and judgment was entered thereon in the justice court. On appeal by defendant to the county court the judgment was modified by reducing the amount of damages to 118, and, as modified, affirmed. From said judgment defendant again appeals.

Modified.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Frank Cooper, for appellant.

Jacob W. Clute, for respondent.

PUTNAM, J.

An erroneous rule of damages was adopted in the lower (justice’s) court. Plaintiff’s action was to recover for the wrongful entry of defendant, his landlord, on the 12th of January, 1895, on premises leased to him, taking possession of an ice house thereon, and filling it with ice. The action was commenced on the Yth day of February thereafter. Plaintiff produced evidence -showing that when evicted he was about to fill the ice house, and he recovered 13 for services in procuring men to do the work and notifying them not to come after his eviction. He was also allowed 15 for the difference in value of ice sufficient to fill the building at the time he was so dispossessed and the time of the trial; and 110, the estimated cost of removing the ice placed in the house by defendant. It did not appear that plaintiff had removed such ice or replaced it. It is well settled that damages which can be allowed in a case like this is limited to such as may be supposed to have entered into the con*69templation- of the parties in making the contract, and such as flow naturally from the violation of the agreement, and are certain in their nature. Speculative profits and accidental and consequential losses are not recoverable. Under the rule so stated, it does not require a discussion to show that it was error to allow the first two items, above specified, as damages. Ordinarily, the damage for an eviction is the rental value of the premises, less the rent reserved. Dodds v. Hakes, 114 N. Y. 261-265, 21 N. E. 398; Drucker v. Simon, 4 Daly, 53; Chatterton v. Fox, 5 Duer, 64; Giles v. O’Toole, 4 Barb. 261. But in such a case as this, where a tenant brings an action against his landlord for entering into a part, of the demised premises, and wrongfully placing therein property of his own, which the tenant will be compelled to remove,—in fact, for a temporary eviction or trespass,—if such tenant does not seek to recover the rental value of the premises, I see no objection to his being allowed what it will necessarily cost him to remove the property so wrongfully placed on his premises by the landlord. In such a case he elects to retain the premises and recover damages as for a trespass. It follows that the item of $10 allowed plaintiff can be. sustained.

The judgment should be modified by striking out the two items of $3 and $5, and, as so modified, affirmed, without costs to either party.

MAYHAM, P. J., concurs.

HERRICK, J. (dissenting).

I think the item of $10 should also be struck out. There is nothing in the case to show that such expense will be necessarily, or even properly, incurred. And the judgment should be modified, with costs of this appeal to appellant.