#### CLAPPER v. KELLS.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Landlord and Tenant—Breach of Covenant—Damages.

Judgment in favor of a lessee for damages for breach of a covenant by the lessor to repair an ice house is not supported by the evidence where it does not appear to what extent the ice was damaged in consequence of the failure to repair, or what repairs the ice house needed, or. how much less the ice was worth in consequence of the breach of covenant.

Appeal from Rensselaer county court.

Action by Norman Clapper against William E. Kells. From an affirmative judgment in favor of defendant on his counterclaim, plaintiff appeals. Reversed.

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

Nelson Webster, for appellant.

Alfred A. Guthrie, for respondent.

PUTNAM, J.

This action was brought in a justice’s court to recover on an alleged claim for rent, goods, chattels, and labor. The defendant in his answer, besides a general denial, set up several counterclaims. The third alleged counterclaim was for damages sustained by him in consequence of the failure of plaintiff to fulfill an agreement to repair an ice house leased by plaintiff to defendant. The case was tried before a justice and a jury, and the defendant obtained judgment against the plaintiff in the action for $49.20 damages and costs. The jury, therefore, must have allowed the defendant his counterclaim, or some part thereof. On the trial the written lease executed by plaintiff to defendant was received in evidence, and it contained a covenant on the part of plaintiff to keep the premises rented in good repair. There was testimony showing that plaintiff had failed to perform said covenant. The defendant was, therefore, entitled to recover whatever damages he had sustained. But, after a careful examination of the testimony contained in the case, we are unable to discover any proper evidence on which the jury could estimate the damages resulting from such breach of covenant. There was no proof whatever as to what extent the ice melted or was damaged in consequence of plaintiff’s failure to repair the ice house. There was no satisfactory proof as to what repairs the ice house needed, or to show how much less the ice was worth in consequence of plaintiff’s breach of covenant than it would have been had that covenant been performed. In fact, the judgment seems entirely unsupported by the evidence. The testimony given on the trial as to what Hayes paid for the ice, and what he said he would have paid for it had the ice house been in good repair, was so clearly not competent to show damage that it is unnecessary to discuss the matter.

On the trial, also, objections of the plaintiff to clearly improper evidence offered by defendant were overruled by the justice. For in*1019stance, defendant having shown that he sold the ice for $300, and asked $500 for it, the following proceedings were had:

• “Question. Did. purchasers, at the time of purchase, state the reason for refusing to pay the sum of $500.00? (Objected to as immaterial, and as calling for a conversation between third parties in absence of plaintiff. Objection overruled.) Answer. Yes, sir. Question. What was the reason? (Objection same as before. Overruled.) Answer. Because the ice house was in such bad shape. Question. What further did they say? (Objected to same as before, and upon the further ground as not a proper rule of damages. Overruled.) Answer. They said they would not give but $300.00 just as it was. I took the $300.00. They would have given me $400 if the ice was in good shape.”

It requires no discussion or citation of authorities to show that the above evidence so objected to by plaintiff was hearsay and improper.

Other objections of the plaintiff to incompetent evidence offered by the defendant were erroneously overruled by the justice. For instance, plaintiff claimed to recover of defendant for an ice bar. The justice allowed the following question to be asked of the witness Hayes:

“Q. State what, if anything, Wm. Garrison said to you in regard to the ice bar. (Objected to as conversation between third parties, hearsay, improper, and immaterial. Objection overruled.) A. He said the bar was his.”

It follows that the judgment of the courts below must be reversed, with costs to appellant in this court and in the county court. All concur.