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) 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 j>er annum until February 1, 1899, which was false, in that there was a secret *789agreement 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 nineteen 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 reserved 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 according to the representation. The only theory, therefore, upon which damages have been sustained is by *790construing 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 valué 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 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 the same 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.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.