#### K. Francis X. Egan and Charles E. Egan, Appellants, *v.*William E. Browne and Others, Respondents.

Second Department,

October 22, 1908.

Landlord and tenant — breach of covenant to furnish steam for business purposes — action in tort — damages —injury to business.

Where a landlord, having covenanted to furnish his tenant with steam for busi- ' ness purposes, has cut off the steam and the tenant cannot get another place equipped to carry on the business, he need not declare on the covenant, but may bring action as for a trespass and recover damages for the injury to his business.

*It ssems;*moreover, that if the action by the tenant be deemed to be for breach of contract, he may under the circumstances recover loss of profits.

Hooker, J., dissented.

Appeal by the plaintiffs, K. Francis X. Egan and another, from a' judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 1st day of February, 1907, upon the dismissal of the complaint by direction of the court at the opening of the case at the Kings County Trial Term.

*Thomas Kelby [John M. Zurn*with him on the brief], for the appellants.

*C. W. Wilson, Jr.,*for the respondents.

*185Gaynor, J.:

It was held in *Denison*v. *Ford*(10 Daly, 412) that when a tenant is evicted he cannot sue the landlord for tort, so as to change the rule as to the measure of damages, but only for breach of the covenant of quiet enjoyment which, if not expressed, is implied in leases. But in the later case of *Snow*v. *Pulitzer*(142 N. Y. 263) the tenant was allowed to pass the covenant by and recover as for a tort. In that way he recovered for the breaking up of his business and the loss of property caused thereby. In the present case the tenants hired a floor in a building which was furnished with steam power for business purposes by the landlord, and’ the lease was in terms not only of such floor, but of the steam power to run the plaintiffs’ business. The complaint alleges that the defendants, the subsequent grantees of the- lessor, “ unlawfully evicted the plaintiffs from the said premises, and the use and enjoyment thereof by wantonly, wilfully and maliciously depriving and cutting off from the plaintiffs’ premises and business all the steam power and live steam absolutely necessary for carrying on the said laundry business”; and it is alleged that the plaintiffs’business was thereby broken up and ruined, and they were unable to get another place equipped to carry on .their business. The case seems to be the same as that of *Snow*v. Pulitzer, for the wrongful trespass by removing the support of a side wall which caused it to fall, as was the fact in that case,- and the wrongful trespass of disconnecting the shafts in the demised premises from the steam plant in the present case, are the same in principle and cannot be distinguished. Each was a trespass which destroyed the beneficial use for which the premises were leased. The later case of *Witherbee*v. *Meyer*(155 N. Y. 446) is not ajsplicable. There the action was, and only could be, for damages for a breach of covenant in the lease that the water power leased with the grist mill was sufficient to run the mill, to its full capacity. It was sufficient to run it, but the complaint was that it was not as great as the lease called for. The rule of damages allowed was the difference between the rental value with the maximum power, covenanted for and the power as it was. But suppose the landlord had wrongfully torn down the dam and deprived the tenant of all power ? The case would then have been ■ the same as the present one and that of *Snow*v. *Pulitzer.*More- *186■ over loss of profits may be recovered in an action for damages for breach of contract, for there are many exceptions to the general rule which is deemed to be to the contrary, if it were necessary to go into that *(Bagley*v. *Smith,*10 N. Y. 489 ; *Wakeman*v. *Wheeler & Wilson Mfg. Co.,*101 id. 205; *Thomson-Houston Electric Co.*v. *Durant L. I. Co.,*144 id. 34, 47).

The judgment should be reversed.

Woodward, Jenks and Rich, JJ., concurred; Hooker, J., , dissented.

Judgment reversed and new trial granted, costs to abide the event.