I dissent on the ground that the case was,tried under an erroneous theory and submitted to the jury under erroneous instructions as to ‘the measure of damage! Among tlw elements of damage sub*288mitted to the-jury to be considered by them was (4) The difference in plaintiff’s living expenses after lie was forced to .move out of the house until he and liis' family left the city (a period of sixty-three days), and (2) the loss of comfort suffered by plaintiff and his family in consequence of being compelled to move. In receiving evidence as to these two items and .permitting the jury to award damages therefor I think the court erred and the errors are presented by appropriate objection and exception.
The case is analogous, so ■ far as damages are concerned; to an evicted tenant, and the proper measure of damage, as-it seems to me, is • the difference between the value of the lease for the unexpired term and the stipulated rent, as well as the. cost of moving from the house at the time it became untenantable in excess of what it would have been at the expiration of the lease. An evicted' tenant cannot recover the increased rent which he may be Compelled to pay for other premises ■ hired for the purpose of doing businéss therein (Chatterton v. Fox, 5 Duer, 64), and for a failure to deliver possession the damages recoverable by a tenant are governed by the sam'e rule, the excess of the actual rental value over the rent reserved in .the lease. (Eastman v. Mayor, 152 N. Y. 468; Dodds v. Hakes, 114 id. 260.) It makes no difference whether the action be on contract or in tort, the measure of. dam age is the same. (Trull v. Granger, 8 N. Y. 115.)
" In Gourdier v. Gormadle (2. E. D. Smith, 200) a tenant brought an action against, one other than his lessor to recover damages caused by the blasting of rock on the'lot adjoining his premises. It was held that in so far as he was deprived of the use of his house he was entitled to the value of such use during the interruption and in addition the expense incurred in removing the rock thrown upon the lot and the injury to his house caused thereby.
The judgment and order appealed from, therefore, should be reversed and si new trial ordered, with costs to appellant to abide event.
Judgment and order affirmed, with costs. Order filed.