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the premises were rented for $13,000 for one year and eight months from the time of the sale would have upon the fee value of the property, and for that effect upon the fee value of the property the plaintiff would be entitled to judgment. It seems to me that the market value of the property at the time of the sale had nothing to do with the proposition. Whether the plaintiff made a good or bad bargain on the purchase of the property is not material. The question is, Was the fee value any less because of the fact that the store and basement was rented for $10,500 for one year and eight months than if it had been rented for $13,000 for the year and eight months? And testimony as to the actual fee value of the property, based upon its real rental value, was competent as bearing on the difference between the actual value based upon actual rental value and the actual value based upon an existing lease for $13,000 a year. The court charged the jury that:

"If you find in favor of the plaintiff, the measure of damage will be the difference between what the premises were actually worth at the time of the purchase of the premises by the plaintiff in June, 1897, and what said premises would have been worth if the representations made by the defendant had been true."

After this charge the jury found a verdict for the plaintiff for $45,000. While it is true that an expert witness called for the plaintiff gave it as his opinion that this property would have been worth $50,000 more if a lease had been for $13,000 than if it had been for $10,000 for the one year and eight months from the time the property was purchased, I think such a verdict is so excessive that it is the duty of this court to set it aside. There was no actual representation as to rental value. The only false representation consisted of the statement that there was a lease for less than two years at $13,000 a year, which sum this plaintiff actually received, but which, in consequence of rebates allowed by the defendant, the amount actually paid by the lessee of the property for the two years was $10,500 a year. That this could have had such a serious effect upon the market value of the property as that testified to by the plaintiff's expert and found by the jury seems to me so absurd upon its face that we should not allow the verdict to stand. So far as actual rent received is concerned, this plaintiff has lost nothing. The only possible claim of damage is that he was induced to pay more for the property than he would have paid if he had known the tenant was not actually paying $13,000 a year, and there is no real testimony upon that point, nor is there evidence that defendant would have sold for a less price than that paid by plaintiff. The insistence by the plaintiff of a written statement of the rentals was quite evidently for the purpose of insuring that the plaintiff should receive the rentals represented for the balance of the term, and those rentals were received. The first verdict was for $6,000, and this verdict was for $15,000. Considering the first verdict of the jury and the nature of the testimony, I am convinced that the verdict is grossly excessive, and for that reason I am in favor of reversing the judgment, so that the question of damages can be submitted to another jury.

Judgment and order reversed, new trial ordered; costs to appellant to abide

event.

MCLAUGHLIN, J., concurs. CLARKE and SCOTT, JJ., concur

in result.

LAUGHLIN, J. (dissenting). I am of opinion that on the last trial of this action the rule of damages prescribed by the Court of Appeals on the former appeal (184 N. Y. 179, 77 N. E. 31), was followed. As I understand the decision of the Court of Appeals, it is, although not expressly so stated, that the statement made during the negotiations for the purchase of the property which resulted in the agreement of the 4th day of June, 1897, for the purchase, that the store was rented at $13,000 per annum until February 1, 1899, which was false, in that there was a secret agreement between the landlord and tenant by which the rental, instead of being $13,000 per annum, was to be $10,500 per annum, constituted a representation that the rental value of that part of the building was $13,000, and that the measure of damages was the difference between what the market value of the premises would have been, had the fair rental value of the store been $13,000 per annum, and the actual market value of the property. If this be not so, I fail to see upon what theory the plaintiff would be entitled. to any damages; for, if the representation be construed literally, he has suffered no damages, because, although there was an outstanding lease of the store which had still 19 months to run at a rental of $10,500 per annum, instead of $13,000 per annum, as represented, yet the plaintiff in fact received $13,000 per annum, an allowance for the difference having been made by the landlord before the plaintiff purchased the premises. If the statement, therefore, be construed merely as a representation as to the amount for which that part of the building was leased for this comparatively brief period, then the plaintiff, since he has received rental at the rate of $13,000 per annum, has sustained no damages. It is true the Court of Appeals sustained the competency of a question calling for the market value of the property with an outstanding lease for the period stated reserving a rental of $13,000 per annum, without containing a statement informing the witness that this was in effect a representation as to the rental value, and the opinion of the Court of Appeals also contains the statement that there was no way to prove the damages sustained by the plaintiff "except by starting with the value of the premises if leased according to the representation."

I concede that the views I am expressing do not seem to fully harmonize with the opinion of the Court of Appeals; but I am unable to perceive how the fact that the rental reserved in an outstanding lease was more or less than the amount represented, taken by itself and construed literally, could have any other effect on the market value of the property than the difference between the rent actually preserved and the amount that it was represented to be. Whether or not the premises were leased according to the representation could only affect the market value by the difference between the actual rental and the rentals

which damages have been sustained, is by construing the representation as one relating to the rental value of the property, as distinguished from the actual amount of rental reserved; and viewed from this standpoint the purchaser might be misled as to the actual value of the property assuming as we must from the decision of the Court of Appeals that he had a right to rely on the opinion of the vendor with respect to the rental value. Rental value is material in determining the actual value of property; but rental value, as distinguished from actual rental reserved or received, being largely a matter of opinion and to be determined by the testimony of experts, it would seem that where the representation is not as to the rental value of the whole property, but only as to a small part of a large building, it would be difficult to figure out the market value of the whole, based on the rental value of such a small part, and but little reliance should be placed on a representation as to the rental value of such a small part of the whole. However, the Court of Appeals has held in effect that a representation in respect to the rental of part of the building may be relied upon as a representation concerning rental value, as well as a representation as to the rental value of the whole, and we have only to follow that rule.

Construing the statement made to the purchaser as a representation with respect to the actual rental value of the property, and regarding that as I feel constrained to do, as a representation of fact, instead of an expression of opinion, for I see no other logical theory upon which plaintiff has a cause of action, then it is not difficult to determine the damages; for it only becomes necessary to ascertain the actual value of the property as it in fact exists, and the difference between that and the market value that it would have had, provided the fair rental value of the store had been $13,000 per annum, gives the damages sustained. The verdict seems very large; but if the representation is to be construed as a representation concerning the rental value, as well as concerning the actual rental, which I understand to be the ruling of the Court of Appeals, then the verdict is fairly sustained by the evidence.

I therefore vote for affirmance.

LOGAN IRON WORKS v. KLEIN.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) SALES (§ 348*)—ACTION FOR PRICE-DEFENSES-COUNTERCLAIM.

In an action for the price of a boiler, work in setting it on a foundation, and erecting a chimney "suitable for the boiler," defendant may counterclaim the expense of extending the chimney to put it in the condition required by the contract.

[Ed. Note. For other cases, see Sales, Dec. Dig. § 348.*]

Appeal from Municipal Court, Borough of Brooklyn, Third District. Action by the Logan Iron Works against Leontine Klein. From a judgment for plaintiff, defendant appeals. Reversed.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Edward Fillmore, for appellant.

John M. Zurn, for respondent.

MILLER, J. The plaintiff agreed to sell and deliver to the defendant a boiler for the sum of $1,235, to set it in brickwork for the sum of $539, and to erect a chimney suitable for the boiler for the sum of $674. The sum of $2,000 has been paid, and this suit is brought to recover the balance.

The only disputed question of fact was whether the chimney constructed by the plaintiff was suitable; the evidence of the defendant tending to show that it needed to be 30 feet higher to produce the requisite draft. The defendant did not rely upon nonperformance as a defense, but pleaded as a counterclaim and set-off that she had been compelled to expend the sum of $610 to put the chimney in the condition required by the contract. At the close of the evidence, the Municipal Court justice dismissed the counterclaim, and it must be admitted that the defendant's counsel had wholly failed to elicit from the witnesses the testimony necessary to present a question of fact on that issue; but that was due to two things-the unscientific questions asked and the erroneous rulings of the justice. While many, and perhaps most, of the questions were objectionable, the objections to some were improperly sustained. For instance, the defendant was not permitted to testify that she extended the chimney; and we must assume that, had that been allowed, it would have been followed by evidence to show what was done, and the reasonable cost of it. The defendant's husband, who acted as her agent, was not allowed to testify to conversations with the plaintiff and its agent which were plainly relevant to the question in issue.

It may be that, if the counsel had not been embarrassed by the erroneous rulings referred to, he would still have been unable to elicit testimony tending to establish the counterclaim; but we cannot assume that, and hence the judgment must be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

In re MONROE, Com'r.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) EMINENT DOMAIN (§ 126*)-PROPERTY TAKEN-LAND UNDER WATER.

A city, having the right to the water of a lake, in condemning a strip of land surrounding it, with the rights of riparian owners, for the purpose of protecting the water, should pay a substantial sum for the fee of the land underlying the lake, in addition to the award for such rights in the lake as fishing, boating, ice cutting, etc.

[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 126.*] Appeal from Special Term, Westchester County.

Proceedings by the City of New York, on the application of Robert Grier Monroe, as commissioner, to acquire certain land. From an order confirming the report and award of commissioners, the City appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Frederick W. Sherman, for appellant.
Wilson Brown, Jr., for respondents.

WOODWARD, J. This proceeding for the condemnation of certain water rights for the city of New York was begun by an interlocutory judgment or order appointing commissioners on the 7th day of February, 1903. The city had previously acquired the right to take the waters of Byram Lake and Wampus Lake as they flowed through the Byram river and Wampus river from the town of North Castle southward toward the Connecticut line. The landowners along the Wampus stream retained the right to resort to the same for the purpose of watering cattle and other ordinary purposes, and, it being conceived that this constituted a menace to the purity of the water supply, this proceeding was instituted to take the borders of the stream and its source, the Wampus Pond, for a distance of about 250 feet back from the banks, thus entirely isolating the waters from contamination. Damage maps were prepared and approved; the land about Wampus Pond being divided into parcels numbered from 82 to 87, inclusive, omitting parcel 83. The pond, itself, having an area of 40 to 45 acres, was shown upon this map as 85. The owners of the upland of parcels 82, 84, 86, and 87 put in testimony to establish the values of their several holdings, this testimony being based upon the estimated value of the property with its then existing rights in Wampus Lake, such as fishing, boating, ice cutting, and summer residential purposes, and the award of the commissioners is not questioned on this appeal in so far as it relates to these parcels.

By the map and petition of the city of New York, the appellant here, parcel 85 was designated as a separate parcel, and was alleged to be owned by Ingersoll F. Knowlton, who was the owner of certain mills. on the stream below, as well as of parcel 84; but it developed in the course of the proceeding that Knowlton, with the other abutting owners, were the real owners of parcel 85, and, while the award of the commissioners for $5,000 was made to unknown owners, this was by stipulation adjusted among the real owners. The contention of the appellant is that, the abutting owners having predicated their damages upon their rights in the lake, it was error on the part of the commissioners to award more than a nominal sum for the fee of the land underlying the lake. We are of the opinion that this position is untenable. The owners of the upland had, as such owners, certain property rights in the lake, regardless of the ownership of the fee. It was valuable, no doubt, for the purpose of summer residences, because of the proximity of the lake, and this value the commissioners recognized and provided for in their report, which has not been questioned. But, after all of the elements of value had been allowed to the

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