On the 3d day of April, 1908, the defendant, a foreign corporation, leased to the plaintiff the basement of its property *637at 1265-1269 Broadway, New York city, to be used as a Russian and Turkish bath establishment, which basement was then equipped and ready for use as contemplated in said lease. Said term, as provided in the lease, was to extend to May 1, 1924 (sixteen years); the annual rental was stipulated in the lease at $11,000; in addition the second party, plaintiff herein, was to pay at the rate of $800 per annum for use of water until the same could be metered, after which time he was to pay the meter rate. In and by the same instrument the second party, the plaintiff, agreed to take over the basement of adjoining premises, 1263, and pay therefor as annual rental the sum of $1,000. A portion of the leased space was held by first party by permit from the city and extended out under the sidewalk, and it was provided in said lease that if any portion of said leased premises should be taken under the power of eminent domain so as to interfere with the contemplated use thereof, within certain limitation therein named, the lease, at the option of the party of the first part, should cease. It may be said here that the first "party, the appellant herein, never took advantage of the privilege of the option. Plaintiff went into possession of the premises under his lease and carried on therein the business for which he leased them, viz., Russian and Turkish baths and accessories. It appears from the record that difference arose in February, 1909, between the parties and the respondent herein; it was claimed by appellant that the respondent defaulted in payment of his rent. Summary proceedings were instituted by the landlord which resulted in the issuing of a warrant dispossessing this respondent. The record permits of the inference , that before the dispossess proceedings appellant had negotiated with the Hudson and Manhattan Railroad Company for an agreement or lease for a portion of the space occupied by respondent. The railroad company was about to exercise and assert its privilege had through a franchise to construct a tunnel under the street near these baths and through a portion of the premises. It was necessary to use a further portion to shore up and brace the buildings and in so doing remove interior structures, marble casings, etc.; to build brick walls through space occupied in properly conducting the respondent’s said business — such a -lease was made between appellant and the railroad company *638for the term commencing March 1, 1910, and ending November 1, 1910. The summary proceedings aforesaid were instituted under the Code of Civil Procedure (Chap. 17, tit. 2), wherein it is provided (§ 2256) that if the proceedings are instituted for non-payment of rent and the unexpired term of the lease exceeds five years, proceedings may be had to redeem said premises in accordance with the order to be made therein as provided in section 2259 of the Code. Previous to March 24, 1910, the proceeding contemplated in said section was had and it was adjudged that respondent herein was indebted to or liable to appellant in the sum of about $4,700 and such sum was duly tendered appellant and appellant refused to accept the same. Thereafter an action was brought against appellant landlord for damage based upon the keeping of the tenant out of possession. The defendant, appellant here, demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, urging that the tenant having proceeded under sections 2256 and 2259 aforesaid had exhausted his remedy and that no relief was available to him other than that provided in section 2259. The Special Term sustained the demurrer and the tenant, respondent here, appealed to the Appellate Division where said order of the Special Term was affirmed with leave to amend on payment of costs; no opinion was written. (147 App. Div. 928.) From the course of litigation in this action as it is gleaned from the records before us, the plaintiff served an amended complaint after the affirmance of the order in 147 Appellate Division, 928, and defendant again demurred, plaintiff brought on the trial or argument by motion for judgment upon the pleadings, which motion was granted with leave to defendant to plead. An appeal was taken from the judgment to the Appellate Division upon which appeal the order granting judgment in favor of plaintiff was reversed, holding the complaint did not state facts constituting a cause of action and giving plaintiff leave to again amend his complaint on payment of costs. , Plaintiff sought and procured an order under section 190 of the Code of Civil Procedure permitting him to review the judgment entered on the decision of 152 Appellate Division, 552. A motion was made to the Court of Appeals to dismiss the last-named appeal because leave to go to said court was *639not procured in accordance with the provisions of section 191 of the Code of Civil Procedure, in that the order granting such leave was not procured at the term making the determination or the next term thereafter. The motion was granted and the appeal dismissed (207 N. Y. 479). That action was discontinued and the present action commenced in March, 1914. Defendant demurred to the complaint in this action upon the same ground which prevailed in the previous action; from that decision an appeal was taken to the Appellate Division (165 App. Div. 799). The Special Term was affirmed by a divided court, Mr. Justice Woodward dissenting with an opinion in which Howard, J., concurred. From the judgment entered on this decision the plaintiff appealed to the Court of Appeals, where the interlocutory judgments and final judgments were reversed. The Court of Appeals adopted the construction contended for by Mr. Justice Woodward (222 N. Y. 47). It should be here observed that after the abandonment of the first action by plaintiff he again took proceedings for redemption of the premises under the provisions of the Code of Civil Procedure applicable thereto and to which reference has herein-before been made. The order in the last-named proceedings was made July 30, 1910, which provided that upon payment by plaintiff to defendant of the sum of $8,709.12, the plaintiff be let into possession of said premises. The decision in the Court of Appeals (222 N. Y. 47) seems to decide two important questions in favor of the plaintiff, viz., that he has a cause of action for damages, if any has accrued, and that a tender of the amount due within a year after the termination of the dispossess proceeding is a proper condition precedent for bringing such action. The case has been twice tried, the first trial resulting in a disagreement. Upon this trial plaintiff was successful, and if the errors complained of by appellant are not vital, the judgment must be sustained. That plaintiff, respondent here, did not exhaust his remedy by pursuing defendant to the fullest extent under statute providing for summary proceedings, is held in 222 New York, 47. Section 2256 of the Code of Civil Procedure uses the words “ payment or tender,” and the Court of Appeals has held in the case last cited that a tender was made before bringing the first action, and as that was a necessary prerequisite to the bringing of the present action, it is in *640order to examine that question before consideration of the other questions is had. The evidence on the part of plaintiff makes out a prima facie case of the tender on August 3, 1910, to the defendant, in accordance with the provisions of section 2256 of the Code of Civil Procedure, of $8,850, in gold certificates; the excess over the $8,709.12 was to cover interest accruing after the order under section 2259 was granted and before the tender, as alleged, was made. It appears, prima facie, that one of defendant’s officers took the money into his possession and counted it; that he said'possession of the bath could not be given; that plaintiff could go to court with it and not to bother the defendant any further about it. The defendant admits that plaintiff was there as testified on his part, had money in his hands and that the officer of defendant to whom the money was offered was anxious to receive it. The evidence of what took place at the time of the last tender is testified to by about an equal number of witnesses, that is by an equal number of those who were in a position to hear and understand what was being done. The defendant called its stenographer, and either he or one of the officers talked over the telephone with defendant’s attorney, with the result, as testified to on the part of the defendant, that the offer to accept was written out and read as follows: “ Replying to your question, we hereby inform you that we are ready and do accept the money, and do hereby give him possession of . the property upon receipt of the money, subject to the right (if any) of the Hudson & Manhattan Railway Company, as tenants,' and under and pursuant to the terms and conditions contained in his lease with your company.” The trial court charged the jury that if that paper was read to the plaintiff it constituted an acceptance of the tender. Thus the question of the tender was specifically called to the attention of the jury and the crucial facts, either to affirm or negative the performance of the condition precedent, were boiled down into the smallest compass attainable. The plaintiff’s evidence is to the effect that nothing of the kind occurred; the jury by its verdict found with the plaintiff. Defendant’s evidence as to the last tender, and that is the only one we are concerned with here, is unusual and conflicting. One of the officers of the defendant swears that he took the words contained in the *641above so-called acceptance from the attorney over the telephone and stated them to the stenographer. The stenographer’s evidence seems to be to the effect that he took the message and then went tb his typewriter and transcribed into longhand on a white piece of paper; two were put in evidence, one white and one yellow and both at different times claimed to be the original. On the first trial an officer of the defendant testified he had looked for it and could not find it, and defendant’s attorney stated in court it was not in existence; the stenographer testified that it had been kept in a drawer, never had been lost, and that the defendant’s officers knew of its existence and that it had been taken out of the drawer several times to copy it. So far as the making of the tender is concerned it presented a clean question of fact, the solution of which was aided by circumstances which favored the plaintiff, and the verdict finds ample support in the evidence. While it is not necessary to this finding, it will be observed that the instrument constituting what defendant calls its written acceptance, is conditional and ambiguous. The railway company may have acquired rights against the defendant which would not be tenable as against the plaintiff, and it seems to contemplate some lease made with plaintiff. The paper writing was speaking to the plaintiff but says “ under and pursuant to the terms and conditions contained in his lease with your company.” The plaintiff had no lease with the railway company. We cannot dismiss the question of tender in this case as settled in favor of the plaintiff by the above finding. The defendant says that conceding the above conditions as found by the jury to exist, still the tender was ineffectual because the tender was not kept good, the money not having been brought into court; that this tender should be, and in law must be the payment of or extinguishment of a debt, and not for the release of a lien upon property. While the Court of Appeals (222 N. Y. 47) did not point out that this case came under either or both of these categories, yet it may be fairly inferred that the situation was taken into consideration where (at p. 54) it is said, referring to the lease with the railroad, “ the existence of the lease did not excuse or prevent the defendant from accepting the tender and transferring to the *642plaintiff the possession, in so far as it had it, and the lease with the railway company. It lawfully acquired the possession of the premises originally demised. It lawfully made the new lease. It was bound upon the tender* to transfer to the plaintiff such actual possession of the premises originally demised as it then had and the lease. The statute provided that thereupon the plaintiff was entitled to the possession of the demised premises subject to the lease which expired November 1, 1910, and to succeed to all the rights and liabilities of (the defendant under the lease to the railway(company. The defendant, as the complaint avers, absolutely and continuously refused to deliver the possession to him or to permit him to secure the possession, and thereby caused him to sustain substantial damages. The complaint alleges the facts from which spring his right to the possession, the disregard or violation of that right by the defendant and consequent damages. Those facts constitute a cause of action.” (Citing Trull v. Granger, 8 N. Y. 115, and Bern-hard v. Curtis, 75 Conn. 476.) Whether defendant, appellant, accepted the money tendered or not the cause of action for damages, if any, survived. This order which established plaintiff, respondent’s right to redeem was in the nature of a lien upon his possession and a judgment, the amount of which he had to tender or pay before getting possession, and that possession must be effected by some act of the defendant. This the defendant refused to do and as it appears from the evidence it was incapable of doing at the time the tender was made. The bath was dismantled, ruined as some of the witnesses testified. The railway company had agreed to restore it to its former condition within the private property .lines; but the defendant accepted the sum of $3,000 in lieu of such restoration; this bears out the plaintiff’s contention that defendant said it should never permit the premises to be used as a bath again. The tender in this case was to release the lien so that an action for damages could be maintained. To hold that the only purpose of the tender, under the law and the circumstances prevailing here, was for payment of a debt and must be kept good, can find no justification in any aspect of the case. However, respondent’s right to recover .damages does not depend solely on this finding. The jury found that defendant refused to accept the money when tendered; refused *643to transfer possession of the lease with the railway company to plaintiff and refused possession of the premises to him, and that he was told it could not be used for a bath longer, and finally that this appellant had settled with the railway company for damage and had the money ($3,000) in its possession at the time the tender was made, and was, therefore, by its own deliberate act unable to deliver possession, as under the law it was called upon to do. Under these circumstances, plaintiff was not called upon to bring the money into court or make continuous effort and sacrifice to keep the tender a continuous act. It was well said in Kilpatrick v. Dean (19 N. Y. St. Repr. 837), at page 845 of the opinion, “ the law never requires a tender when it would be useless and of no avail.” To the same effect are Lawrence v. Miller (86 N. Y. 131); Cass v. Higenbotam (100 id. 248); Exchange Fire Ins. Co. v. Norris (74 Hun, 527); Stokes v. Mackay (147 N. Y. 223); Schieck v. Donohue (92 App. Div. 330); Universal Beer Keg Company v. Brown (9 N. Y. St. Repr. 91); Hoyt v. Sprague (61 Barb. 497). The trial court gave the proper rule of damages to the jury, viz., the difference between the rent reserved in the lease and the actual annual rental value of the property. The term under the lease commenced April 3, 1908, and was to end May 1, 1924, sixteen years. This action was commenced about March 26, 1914. The plaintiff sought to recover and did recover for the full term of the lease from November 1, 1910, thirteen years and eight months; the difference between the annual rent reserved in the lease and the actual annual rental value was found by the jury to be $6,200 a year. The trial of this action commenced on the 5th day of May, 1919, and ended on the 14th day of May, 1919. The verdict in favor of the plaintiff was for $130,006.25; this is before costs and extra allowance were added. Appellant now makes the objection that this being an action at law plaintiff cannot recover damages for any cause existing after the commencement of the action. (Citing Uline v. N. Y. C. & H. B. B. B. Co., 101 N. Y. 98; Porter v. Met. El. B. Co., 120 id. 284; Ottenot v. New York, L. & W. B. Co., 119 id. 603; Mitchell v. Village of White Plains, 91 Hun, 189; Pond v. Met, El. B. Co., 112 N. Y. 187; Tollman v. Met. El. B. Co., 121 id. 119; Dean v. Met. El. B. Co., 119 id. 540.) These cases treat *644of permanent damage to land or for trespass. Upon the trial the defendant did not raise the specific objection raised here. The plaintiff was entitled to prove his damage to the time of the trial. (Park & Sons Co. v. Hubbard, 198 N. Y. 136.) From the opinion on said appeal (p. 139) we read as follows: “ The rule, however, limiting a recovery in an action at law to damages accruing prior to the commencement of the action is stated below too broadly. Whatever may have been the practice in times gone by, it has been long settled that as a plaintiff must recover for a single wrong, either tort or breach of contract, all his damages in one action, so he may prove at the trial all damage that he has suffered up to that time that is the necessary or natural result of that wrong, and in many cases prospective damages, if they are reasonably certain to follow.” Many conditions might arise after the time of the trial of this action to the termination of the lease, over which neither party had control, that would enhance or decrease the annual rental value of these premises; fire might work total destruction and by statute cancel the lease without any attaching obligation resulting as against either party. The question of damages after the trial and for the balance of term named in the lease was highly speculative; such damages as were allowed by the jury for the balance of the term following the time of the trial were not such as were “ reasonably certain to follow.” The total amount which plaintiff was entitled to recover under the rule of difference in rental value as found by the jury is $55,508.30; from this should be deducted the amount due August 3, 1910, with interest. The time allowed for which damages can be computed at $6,200 a year is from November 1, 1910, to May 14, 1919, on which last-mentioned date the trial of the action closed. This was an unliquidated account, undetermined, and undeterminable up to the time the jury received the case from the court. Interest should not have been .figured nor allowed. The appellant concedes and urges that we have power under section 1317 of the Code of Civil Procedure „to find such a judgment as the evidence justifies; such contention is sound and proper if such judgment so found does justice to the parties. (Miles v. Casualty Co. of America, 203 N. Y. 453.) Appellant urges that the taking and rendition of the verdict of the jury was *645irregular and, therefore, void; we do not find any such defect pointed out in the record, and the court had power to make the verdict conform to the intent and purpose of the jury. This simply required a multiplication of the amount by the time allowed for and addition of interest; that was stated in the presence of the jury and acquiesced in by the jury. Interest was a mathematical calculation which the clerk could and apparently did figure. (Clark v.Lude, 63 Hun, 363; Duerr v. Consolidated Gas Co., 104 App. Div. 465.) The appellant further urges that too wide a range of «cross examination was permitted plaintiff. In People ex rel. Phelps v. Oyer & Term. County of N. Y. (83 N. Y. 436) at page 460 of the opinion the court says: “ Objection is made to the range of cross-examination allowed to the prosecution as it respected the evidence of both Scallon and Genet. In both cases it was searching and severe, and extended over a wide area of subjects and circumstances, and is claimed to have wandered far away from the precise issues involved, and to have seriously and unjustly prejudiced the case of the defendant. Our control over such an alleged error is not absolute. As a general rule the range and extent of such an examination is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character.” This rule is applicable to civil cases. (Great Western Turnpike Co. v. Loomis, 32 N. Y. 127; Penny v. Rochester R. Co., 7 App. Div. 595; Carey v. Brooklyn Heights R. R. Co., 124 id. 524.) Motions made to strike«out evidence by defendant upon the trial were in several instances denied. Exceptions were taken, no error is presented and many of them are useless under the rule laid down in Quin v. Lloyd (41 N. Y. 349; followed in People v. Chacon, 102 id. 669) and Hoffman v. Lehigh Valley R. R. Co. (188 App. Div. 414). I find no error or errors that should reverse this judgment as a whole except that the judgment is excessive as hereinbefore pointed out; and under section 1317 of the Code of Civil Procedure we can and it is our duty to decide this appeal in accordance with the letter and spirit of that section. The judgment-should be reversed, with costs, unless the plaintiff stipulates within twenty days after this decision is handed down to *646reduce the verdict of the jury to $55,508.30, less the amount of last tender and interest, $13,168.35, leaving balance of $42,339.85, and if such stipulation is given by plaintiff the verdict as so reduced with the costs and extra allowance in the trial court to be added to constitute the judgment, and if so modified affirmed, without costs of this appeal to either party.
Woodward, J., concurs.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.