I concur with the first judge in the conclusion that the damages alleged to have been sustained by the plaintiff for want of repairs to the demised premises, ought not to have been allowed. If it be conceded that the form of denial contained in the answer is not warranted by the Code, it would not affect this question; the amount of damages in the complaint is not the proper subject of a denial—it is not issuable matter—it is the breach of the covenant to repair which should be denied, and if that be put in issue it is wholly unnecessary to traverse the allegation that the plaintiff has sustained damage. If the covenant be broken it follows as matter of law that the plaintiff has sustained damage, and if that be not broken, it follows in like manner that the plaintiff has sustain no damage. The amount of damage is not traversable. It must always be proved whether denied or not. On default when no answer is put in, and when of course all traversable averments are taken as admitted by the defendant, the plaintiff must prove the amount of damages sustained or he can recover nominal damages only. So here, if it be conceded that the answer contained no proper denial of the alleged breach of the *32covenant to repair, and that the breach is therefore to be taken as. admitted, still the plaintiff was bound to show the amount of the damages occasioned thereby, and having failed to do so they ought not to have been allowed to him. (See the like question decided in Connoss v. Meir, in this court, at the January general term.) (a)
But I think that the judgment at the special term was correct in allowing the amount paid for Croton water rate. The covenant was express to pay the regular annual rent or charge for the Croton water. • It was thus - admitted to be an annual charge which the defendant was to pay, and he wás to pay it to the authorities to whom it-was due. In my judgment it formed no part of the quarterly rent which was payable to the plaintiff. The words introduced into the clause in the lease parenthetically, were unnecessary, but were plainly introduced out of abundant caution to show that this tax was to be paid in addition to the $500, which was payable quarterly.
This sum, therefore, was properly allowed to plaintiff, $8 40.
I also agree with the first judge that the plaintiff having undertaken to-let the premises in pursuance of the right reserved to him in the lease, is bound to give the defendant the full benefit of the rent received on the reletting, and that he can abate nothing for the expense of improvements; and it appears by the evidence of the plaintiff himself that the premises were relet from the 1st of October to Mrs. Yose, and also that he “ received from her up to the 1st of November at the rate of $600 a year rent.” The amount thus received he is hound to credit to the defendant if the letting was as his agent, and if not then the liability of the defendant for rent had ceased entirely. I do not agree that the- plaintiff could retain this money and yet sue for and collect from the defendant the whole rent payable by him on the 1st November, under a possible apprehension that the new tenant might not pay the rent for the next quarter. So fast as the rent was collected, the defendant was entitled to be credited, so that in truth on the 1st of November, *33the defendant was chargeable with one quarter’s rent, at five hundred dollars per annum’, $125, and entitled to a credit of one month’s rent received of the tenant, $50, leaving a balance due to plaintiff for rent of $75, on that day.
If nothing had in fact been received from the new tenant on the 1st November (which the opinion below appears to assume), and the plaintiff was in no fault for not making the collection, the defendant would have remained liable for the whole rent of the quarter. His indebtedness was fixed and definite. His title to be credited depended upon the ability of the plaintiff to collect rent for the premises for his benefit, and he could have no credit until the rent was paid. So on the other hand, the plaintiff if he had chosen to delay his rent till the end of the year could have had the whole deficiency, if any, determined at once. But having brought his action for the rent due November 1st, he must credit all that he says he received up to that time.
It would seem by the testimony of one of the witnesses, that since this action was commenced and the issue joined, the new ten'ant has in fact paid the rent for the next two quarters ; so that if the account between the parties could now be finally stated and settled in this action, it would stand thus :
Dr.—To Croton water rate, , $ 8 40
To 3 years’ rent, to May 1,1853, 375 00
383 40
50 00 Or.—By rent received from new tenant to 1st Nov. 1852,
300 00 '' By rent, ditto, to May 1,1853,
■- 350 00
Leaving due to the defendant herein only $ 33 40 and interest.
Had the defendant thought proper after these last payments were made, to interpose a supplemental answer in the nature-of a plea puis da/rrem continucmce under § 17 of the Code of Procedure, he might have been allowed these payments made *34■after issue joined; but not having done so, it seems to me that the rights of the parties must be adjusted and settled as they •existed when the action was commenced.
It is argued, first,' that inasmuch as the plaintiff brought his action without waiting until the expiration of the term, he must be treated as having assumed the risk of collecting all subsequent rents to accrue under the reletting, and therefore, the account between the parties, though stated on the day the action commenced, must credit the defendant all that the new tenant had agreed to pay. And second, that the agreement in .the lease, that if the landlord should reenter and should be unable to relet the premises or to obtain sufficient rent to make up the amount reserved, the defendant should pay any loss or deficiency “ for the residue of the term,” is to be taken as a single covenant to pay a single sum to be determined at the end of the term by charging all rents accrued under the original lease, and crediting all rents collected under the re-letting.
It seems to me that neither of these propositions is warranted by the fair and just meaning of the argument when construed in connection with the whole subject matter to which it relates.
The defendant had covenanted to pay $500 a year, in quarterly payments. Upon his default, the plaintiff, as his agent, and for his account and benefit, might relet the premises and collect the rent, and the defendant bound himself to pay any deficiency.. To my mind the meaning of .the agreement taken together, was that the plaintiff should have his rent at the end of each quarter—and that the plaintiff should have a perfect right to sue for that rent at the end of each quarter, and if then he had collected anything on a reletting, he must give credit therefor and for that only. Suppose the lease had twenty years to run. If the plaintiff did not reenter and take possession, then confessedly he could collect his rent quarterly; and can it be reasonably insisted that if he does reenter, and relet for account of the lessee, that then he must either be satisfied .with what he collects and wait the expiration of the twenty *35years before he can collect the residue of the rents which the defendant consented to pay quarterly, or must, on the other hand, if he sue at the end of the first quarter, assume to himself the risk of all subsequent collections from the new tenant. I think not. The landlord is justly entitled to his full rent quarterly, and whenever he (acting of course in good faith) fails in any quarter to collect his full rent, the lessee ought, and I think by the fair meaning of the agreement is bound, to make up the deficiency. The agreement to pay the deficiency should be taken to apply severally to each quarterly payment, and the end of each quarter is the time for a settlement between the parties. And although, as before remarked, had the defendant thought proper to set up by supplemental answer the payments made to the plaintiff after issue joined, they should have been allowed, and the recovery limited to $33 40 and interest; he not having done so, the recovery should be governed by the state of the account existing when the answer was put in.
The account with the defendant will therefore stand thus—
Dr.—To Croton water rate, $ 8 40
To rent due 1st November, 1852, 125 00
133 40
Or.—By one month’s rent, at $600, rec’d, 50 00
$83 40
No question appears to be raised in respect to interest, and the plaintiff is clearly entitled to interest from the commencement of the suit, I think. If therefore the plaintiff thinks proper to reduce his judgment to that sum and interest and costs, the judgment should be to that extent affirmed without costs to either party on appeal; otherwise the judgment should be reversed and a new trial ordered.
Daly, J.I concede that I erred upon the trial in holding that the amount of damages was admitted by the *36pleadings. Since the trial of this cause, We held, in Connoss v. Meir, January general term, 1854, that the averment of the amount of damages is not traversable, and that under any state of pleading, the plaintiff, if he seeks to recover more than nominal damages for the breach of the covenant, must show what damages he has sustained; but I still think that the rent received by the plaintiff, for the month of November, should not be credited to the defendant in this action. As it is necessary however that the case should be decided, I agree that the verdict may be reduced to $83 40.
Judgment affirmed, without costs of appeal, provided the plaintiff consents to reduce the judgment to $83 40, and -interest and costs of suit. Otherwise, judgment reversed and a new, trial ordered.
Reported in 2 E. D. Smith, 314.