The court below seems to have gone upon the ground, that the jury was at liberty to treat the arrangement between the parties as constituting two distinct and independent contracts; one for the letting and hiring of rooms in the plaintiff’s house, and the other for board: and under the instructions which the jury received, they may have found for the plaintiff, although they were perfectly satisfied, from the evidence, that the defendant was fully justified in leaving the house, for the reason that he was not provided with proper board. I am, wholly unable to see that there was any more than one contract between the parties. It provided for two things, to wit, rooms and board ; and separate prices were-affixed to each ; but there was only one agreement. The reason why different, prices for each was mentioned, instead of one sum for the whole, is apparent. There was to be an abatement in the plaintiff’s compensation when the defendant, his wife, or the other members of the family should be absent. As the contract was entire, the defendant would be fully justified in leaving the house, if the plaintiff neglected to perform that branch of the agreement which related to board. It is impossible to maintain that whefi a man contracts for rooms and board, he must take and pay for one, although he cannot get the other.
Again. This was nothing more than an agreement for board and lodging, with a designation of the- particular rooms which the defendant was to occupy. It was not a contract for the hiring and letting of real estate. When one contracts with the keeper of a hotel or boarding house for rooms and board, whether for a week or a year, the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate. If he is turned out of the rooms before the time expires, he cannot maintain ejectment; and while he remains, the hotel keeper cannot get his pay by distraining as for rent in arrear. I repeat: this was nothing more than a contract for board and lodging.
Then as to the rule of damages. If the plaintiff could re *605cover, she was not entitled, as á matter of course, to the stipulated price for the use of the rooms to the end of the year; but only to such damages as had directly and necessarily resulted from the breach of the contract. She could not refuse the rooms to other lodgers, leaving them idle, and then recover against the defendant as for use and occupation. (Shannon v. Comstock, 21 Wend. 457; Heckscher v. McCrea, 24 id. 304.) Although one party be chargeable with a breach of contract, the other party has no right to conduct in such a manner as to make the damages unnecessarily burdensoipe.(a)
But finally: The plaintiff was not entitled to recover any thing. She had already been paid—or at least had recovered— for all the time that the defendant occupied the rooms, and a good deal more. The contract was void for not being in writing. The statute extends to “every agreement that, by its terms, is not to be performed within one year from the making thereof.” (2, R. S. 135, § 2.) This agreement was made on the 17th or 18th day of April. 1839, and it could not be fully performed until the first of May, 1840, which was more ,han a year from the-making. True, performance was to commence in a few days; but it was not to be completed within the year. “ Performed” is the word in the statute, and part performance within the year will not help the case. (Bracegirdle v. Heald, 1 Barn. & Ald. 723; Boydell v. Drummond, 11 East; 142; Drummond v. Burrell, 13 Wend. 307.) These cases are directly in point, and are decisive against the action. The court below went upon the ground, that a lease of lands by parol for a period not exceeding a year is good. (2 R. S. 138, § 8.) But there is no leasing of lands, or any interest in lands, in the case. As the contract was void, the plaintiff could only recover for the actual enjoyment; and for that, and more'too, she has been paid already.
There are other good objections to this judgment; but enough have been mentioned. As the plaintiff cannot recover, a venire do novo would only lead to useless expense.
Judgment reversed.
This cause was decided at the July term, 1844
See also Clark v. Marsiglia, (ante, p. 317.)