Psaroudis v. Markowitz

Defendant’s testator leased premises to plaintiff for use as a laundry. The lease contained a landlord’s covenant to furnish a stipulated head of steam. The action is brought to recover damages for constructive eviction claimed to have been caused by the willful refusal of the decedent in his lifetime to supply the steam. The appeal is from a judgment in favor of the plaintiff rendered upon a jury’s verdict. The evidence is sufficient to sustain the jury’s finding that there was an eviction and also the jury’s award of profits as an element of damage.

At the conclusion of the trial, however, the plaintiff was granted leave to amend the complaint, over defendant’s exception, by adding allegations that after the death of the decedent the defendant individually continued wantonly and maliciously to deprive the plaintiff of steam, and the jury has on this amended complaint found one verdict against the defendant individually and as executrix. As an individual, she is not liable for the eviction caused by her testator. As executrix she is not liable for her own personal conduct after the decedent’s death. The respondent, recognizing the impossibility of sustaining a single verdict upon two merged causes of action against essentially different defendants, consents to a reversal against the defendant individually and claims that he thereby cures the error committed. The con*571tention is unsound because the jury has included in a verdict against the executrix damages arising out of a cause of action urged against the individual defendant only. The gravamen of the action here is the act of the decedent, not that of the individual defendant. The damages for that act may under certain conditions include, if a jury so finds, loss of profits for a period continuing after the decedent’s death. But they may not include damages arising out of a new cause of action against the defendant individually.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the evenb.