commenced an action of summary process against Harris, which was not carried to a successful issue, and Harris remained in possession until the following August.

The plaintiffs tendered to the defendant the rent on the 1st of April and of May, and demanded possession. The plaintiffs further leased the State street store for the month of April for $50, and on the 8th of May leased that store and paid the rent for the same for one year from March 1st, being unable to obtain a lease of it for one month.

The plaintiffs opened their millinery business in the State street store on or about April 1, and continued business there until August 1, 1897, and used there the fittings and furnishings ordered for the defendant's store. In July the plaintiffs leased a store on Main street from the 1st day of August, 1897, for one year, at a rent of $1,050, called the "Coughlin Store," and transferred to that store the fixtures and furnishings used at the State street store, and were put to the further expense of $800 in altering and fitting that store for the millinery business. Mary E. Hogan continued in the employ of the plaintiffs in their business in the State street and Coughlin stores upon the terms of plaintiffs' said contract with her. Other material facts are stated in the opinion.

Curtis Thompson and Arthur D. Warner, for appellant. Jeremiah D. Toomey, Jr., for appellees.

HALL, J. (after stating the facts). Although the complaint does not expressly allege that the defendant agreed to deliver possession of the leased premises on the 1st of April, it describes a cause of action sufficient, in the absence of a demurrer, to sustain a judgment for substantial damages. It in effect alleges that, in violation of the terms of the lease made a part of the complaint, the defendant refused to put the plaintiffs in possession of the store. After the default, it was only necessary for the plaintiffs to prove the averments of the complaint as to the extent of their damage. The burden rested upon the defendant to prove any fact which would show that he was free from any liability. If he desired, upon the hearing in damages, to raise the question of whether a wrongful holding over by Harris would relieve the lessor from liability, he should have given notice of that defense; as required by section 742, Gen. St. 1902, and should have proved it. In the absence of a finding that Harris' possession after April 1st was wrongful, and with the burden of proof thus upon the defendant, we must regard Harris' possession as lawful. The fact that he was rightfully in possession under a verbal lease from the defendant does not prevent the plaintiffs from recovering substantial damages. Cohn v. Norton, 57 Conn. 480-490, 18 Atl. 595, 5 L. R. A. 572.

The correct rule of damages in actions of

this character is stated in Cohn v. Norton to be that "the plaintiff is entitled to recover the rent paid, and the difference between the rent agreed to be paid and the value of the term, together with such special damages as the circumstances may show him to be entitled to"; and, citing the leading case of Hadley v. Baxendale, 9 Exch. 341, it is said that, as in ordinary cases of breaches of executory contracts, the essence of the rule is "that the defendant must in some measure have contemplated the injury for which damages are . claimed. If it was the direct and natural result of the breach of the contract, he did contemplate it; but if the injury did not flow naturally from the breach, but the breach combined with special circumstances to produce it, then the defendant did not contemplate it, unless he had knowledge of the special circumstances"; and that there may be cases in which, from the nature of the transaction and the character of the business in which the party is engaged, the defendant will be deemed in law to have contemplated the injury for which damages are claimed, although not expressly informed of the special circumstances which may have contributed to produce it.

In Jordan, Marsh & Co. v. Patterson et al., 67 Conn. 473, 480, 35 Atl. 521, 523, in speaking of the special damages recoverable for breach of contract, it is said that, speaking generally, they must "be confined to such as result from the circumstances which may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract"; and in Lewis v. Hartford Dredging Co., 68 Conn. 221-236, 35 Atl. 1127, that special damages which the parties ought in reason to have foreseen, as the probable and direct result of special circumstances which were or ought to have been known to the defendant, may be recovered.

The rule as thus stated accords with that laid down in Hadley v. Baxendale, 9 Exch. 341, that the damages recoverable are "either such as may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."

It may be added that mere notice to a lessor of the facts from which special damages may arise upon a breach of his contract does not necessarily render him liable for the special damages which afterwards result therefrom. To render him so liable, the knowledge of the lessor, or the facts surrounding the making of the lease, must be shown to have been such that it may be fairly inferred therefrom that he consented to assume the enlarged responsibility and risk of such special damages. 1 Sedgwick on Damages, sec. 159 (8th Ed.); Wood's Mayne on Damages, sec. 41; Hale on Damages, p.

62; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487; Snell v. Cottingham, 72 III. 161.

Other rules of law applicable to the case at bar are that the plaintiffs may recover the reasonable cost of steps necessarily taken in order to protect themselves from loss, or to diminish the loss, from proper acts of preparation to occupy the defendant's store (1 Sutherland on Damages, p. 148); that the plaintiff's assumed the risk of loss from all liabilities not incurred by them in good faith (Cohn v. Norton, 57 Conn. 480-493, 18 Atl. 595, 5 L. R. A. 572); that all damages which they could have avoided by the use of due diligence are not to be regarded as the proximate results of the defendant's acts (Jordan, Marsh & Co. v. Patterson et al., 67 Conn. 473-481, 35 Atl. 521); and that those injuries and losses, for which a recovery is sought, not necessarily resulting from the defendant's wrongful act, but following it as natural and proximate consequences, and termed special damages, must be specially alleged, so that the defendant may be apprised of the nature of the loss actually sustained, and be prepared to go into the inquiry (Bristol Mfg. Co. v. Gridley, 28 Conn. 211, 212; Lewis v. Hartford Dredging Co., 68 Conn. 221-236, 35 Atl. 1127).

The items of damage allowed by the trial court in the present case, and which go to make up the judgment of $1,540, are the $800 paid by the plaintiffs for the alterations and fixtures for the Coughlin store, and the $400 paid for rent of the State street store after the plaintiffs ceased to occupy it. The defendant objected to proof of these items of damage, and afterwards claimed that they should not be allowed, and further claimed that there could be no recovery for loss by reason of expenses incurred after the plaintiffs were informed of the claims of Harris and of his refusal to vacate the defendant's store on the 1st of April.

From the fact that the judgment is based upon these two items, as well as from certain rulings and statements of the trial court appearing upon the record, it would seem that damages were assessed upon the theory that the plaintiffs, independently of their right to recover for any loss they may have sustained by reason of preparations made to occupy the defendant's store, were entitled, upon the facts alleged and found, to a judgment for the loss growing out of the expense incurred by them in procuring another store, equally suitable with the defendant's, in which to conduct the millinery business.

As indicating such view of the case, the trial court says that the plaintiffs were required to "give up entirely their purpose of establishing a business in Bridgeport for the present, and immediately dispose of their stock of goods or dispose of and arrange to protect themselves in respect to the fixtures on hand or ordered, or they might pursue such a course as they did, for the purpose of

locating themselves on Main street, as soon as opportunity afforded. They chose the latter course. It was a proper and reasonable one, if they were determined to carry on business in Bridgeport in the future;

that the defendant must be held to have understood that damage would result if the plaintiffs could not use the fixtures (ordered for the defendant's store) in the Curtis store, or if, in order to get an equally but no more desirable store on Main street, they had to purchase additional fixtures or pay a bonus to get possession;" that "in the natural course of the events, in order to obtain the object of their lease-the use of a store on Main street, and as near the Curtis store as possible-the plaintiffs were driven almost necessarily to this expenditure," that is, of the $800, for additional fixtures for the Coughlin store; that "in July the plaintiffs, finding the State street store unsuitable for their business, and in pursuance of their original purpose of obtaining a store on Main street," leased the Coughlin store; and again, that one of the steps taken to protect themselves from loss was "the hiring of the Coughlin store, which was in pursuance of their original purpose of establishing a business in that section of the city."

It is true that the trial court has found that the plaintiffs "were justified in ordering the fixtures (for defendant's store), and in some reasonable preparation for the opening of business in the Curtis store on the 1st day of April, by the purchase and reservation of stock, and in a small amount of manufacture * * *," and that "their steps taken to protect themselves from loss, growing out of reasonable preparations, * including

the hiring, fitting, and vacating the State street store, and the hiring and fitting up of the Coughlin store, were reasonable and proper." But the record does not state that the plaintiffs were justified in sending the $3,371 worth of goods to the State street store in March, after, as the court finds, the doubt arose as to the possession of the defendant's store, nor is it found what part, if any, of these goods were purchased or manufactured after the 9th of February, when the lease from the defendant was executed, nor does it clearly appear what loss, if any, the plaintiffs sustained by having purchased the fixtures for the defendant's store, nor indeed whether they were in fact purchased before the 26th of February. Evidently it is not meant by this part of the finding that the entire expense of hiring, fitting, and using the State street and Coughlin stores was reasonable and proper in order to protect the plaintiffs against loss from preparations to occupy the defendant's store on April 1st, since but a part of such expense is allowed to the plaintiffs by the judgment, and since it clearly appears from other portions of the finding that these stores were rented and used by the plaintiffs largely, if not wholly, for a dif ferent purpose, namely, for carrying out their

original design of conducting a retail millinery business in Bridgeport.

The plaintiffs are not entitled to recover expenses incurred by them in procuring another store merely for the purpose of carrying out their original plan of opening a millinery business in Bridgeport. They cannot recover them as general damages because, by the premises of an ordinary lease, the lessor does not undertake, upon failure to deliver possession, to furnish other premises equally well adapted to the lessee's use at an expense beyond the market value of the leased premises. The limit of the general damages which a lessee may recover, who is thus denied possession, is the actual rental value of the leased premises for the term, and not the amount which the lessee under special circumstances may have been compelled to pay to obtain similar premises. If such actual value of the term is no greater than the rent agreed to be paid, the general damages, in the absence of any payment of rent, are nominal, but, if rent has been paid, then the amount of the rent so paid. If such actual value is greater than the rent agreed to be paid, the general damages are the difference between the agreed rent and such actual value, plus the amount of rent actually paid.

Nor can the plaintiffs recover as special damages the expense incurred in procuring another store merely for the purpose of establishing a business in Bridgeport: First, because, from the mere fact that when the lease was executed by the defendant he was informed that the plaintiffs intended to establish a millinery business in Bridgeport, and had made certain purchases of goods therefor, it cannot reasonably be supposed that the defendant contemplated, as probable results of a breach of his contract, and as risks assumed by him, that the plaintiffs might sustain losses by renting, merely for the purpose of establishing such business in Bridgeport, an unsuitable store on State street, paying $400 rent therefor after they had ceased to occupy it, and hiring another store on Main street, requiring the expenditure of over $1,600 for fixtures, $800 worth of which would be valueless to the plaintiffs beyond rendering such store equally suitable with the defendant's for carrying on such millinery business; and, second, because it is not alleged in the complaint that the plaintiffs suffered any loss or incurred any expense in procuring another store equally suitable with the defendant's in which to carry on their projected millinery business, or that they did procure such a store. In fact, such suitable store was not obtained until after the present suit was brought. The only special damages alleged in the complaint are those arising from expenses incurred by the plaintiffs in protecting themselves from loss from preparations made prior to April 1st to occupy the defendant's store, and from depreciation in the value of goods purchased

or manufactured for the Bridgeport business before April 1st. If the plaintiffs did not in fact make any preparations for occupying the defendant's store for the expense of which he can be held liable, they cannot, assuming the value of defendant's store to have been no greater than the rent agreed to be paid under these allegations, recover for any expense incurred in procuring another store in which to conduct their business. By this we do not mean that the plaintiffs may not recover, under the allegations of the complaint, such part of the expense of carrying on the millinery business in Bridgeport as was necessarily incurred by them in protecting themselves from loss from proper expenses of preparation to occupy defendant's store.

Assuming that the actual rental value of the defendant's store was no greater than the rent agreed to be paid, the real question then to be decided upon the hearing in danı ages was, what loss, for which the defendant can be held liable, did the plaintiffs sustain by reason of their alleged preparations to occupy the defendant's store? and not, what expense did they incur in order to procure another store equally as good?

Upon the record before us, the judgment rendered cannot stand as a measure of the loss resulting from such preparations: First, because, as we have said, it seems to be based upon, or to include a different loss than that resulting from, such preparation; and, second, because it does not clearly appear that there were acts of preparation to occupy the defendant's store, and losses resulting therefrom, which would render the defendant liable to the amount of the judgment rendered.

In his memorandum of decision the trial judge says "the plaintiffs have been permitted to give in evidence every special circumstance from which they thought a claim for special damages might arise." While the finding states that the plaintiffs proved a depreciation in value of goods not sent to Bridgeport, and in goods manufactured in Bridgeport after the 1st of March, and that there was evidence tending to show a loss of 25 per cent. on the $3,371 worth of goods sent to the State street store, and that it may be assumed that the fixtures purchased for the defendant's store could have been sold for 60 per cent. of their cost, the judgment is not based on these losses. And while it is found that the hiring, fitting, and vacating the State street store, and the hiring and fitting up of the Coughlin store, were reasonable and proper steps to protect the plaintiffs from loss growing out of reasonable preparations, and that the plaintiffs acted in good faith in making preparations for their spring opening, and in steps taken to facilitate the disposal of their goods and protect themselves from loss, it nowhere appears what the court regarded as reasonable acts of preparation-excepting, perhaps, the purchase

of the fixtures for the defendant's store, the cost of which are not included in the judgment-nor just when the acts, which the court may have considered reasonable acts of preparation, were performed.

Again, certain of the expenses incurred and losses sustained which are described in the finding cannot properly be regarded as arising from acts of preparation to occupy the defendant's store, and for which the defendant can be held responsible.

The plaintiffs cannot recover for any loss sustained by reason of expense incurred after February 26th to occupy the defendant's store. On that day they were fully informed as to the claims of Harris; that he refused to surrender possession on the 1st of April, and that their only chance of obtaining possession later depended upon the determination, by an action of summary process, of the disputed question of whether Harris had a verbal lease. With these facts before them, they were notified in writing by the defendant's counsel that, while the defendant would do what he could to get possession, they must take note of the situation. The only fair interpretation of this language, under the circumstances then existing, is that the plaintiffs could no longer act in reliance upon the agreement that they should have possession on April 1st. In Cohn v. Norton, supra, it was said, "Again, if these liabilities were incurred after the plaintiff knew that it was doubtful whether he could have the store, * * they were incurred in bad faith, and he assumed the entire risk." In that case, as in this, the plaintiff, after he had learned the facts, was informed that the defendant would do all he could to get possession.

It does not appear that the defendant made any such promise to deliver possession after April 1st as would have justified the plaintiffs in incurring, after February 26th, any liabilities, at the defendant's risk, with the view of obtaining possession at such later date, nor is it alleged in the complaint that the defendant made any such promise, or that the plaintiffs suffered loss by reason of the breach of any such promise.

The plaintiffs should not be allowed for loss sustained by depreciation in value upon all the goods which they had on hand before obtaining the lease from the defendant. The defendant was not a party to the purchase of such goods. It is not alleged that he knew of their purchase, nor is it found that he had any other information concerning them than that the plaintiffs had made certain purchases in Europe. There may, however, be allowed the loss, if any, caused by reserving or keeping, from February 9th to February 26th, for use in the defendant's store, or by shipping to Bridgeport for that purpose between those dates, such portion of those goods as it may be shown the defendant, when he signed the lease, knew or should in reason have apprehended would be

so kept or shipped; as well as any loss which may have been sustained by the plaintiffs by the purchase or manufacture of such amount of goods, between those dates, for use in the defendant's store, as it may be shown the defendant, when he signed the lease, knew or should have apprehended would be so purchased or manufactured. And so, too, there may be an allowance for any other loss, alleged in the complaint, caused by any act done, or expense incurred, by the plaintiffs between said dates in making proper preparations to occupy the defendant's store, which loss, upon the facts, it may reasonably be supposed the defendant, when he signed the lease, contemplated as the probable result of a breach of his contract.

If any part of the expense of renting, fitting up, and using the State street and Coughlin stores after February 26th, or of conducting a millinery business in them after that date, was necessarily incurred in protecting the plaintiffs against loss from the proper acts of preparation between February 9th and February 26th, above described, the loss occasioned by such expense should be allowed; but, in determining the loss sustained by the purchase of any fixtures for that purpose, the value of such fixtures left on hand should be deducted from the proper cost thereof, and no part of any expense incurred by the plaintiffs merely for the purpose of providing themselves with another store equally well adapted with the defendant's for the millinery business should be allowed.

As the damages do not appear to have been assessed in accordance with the rules above stated, the case is remanded for a reassessment of damages. The other Judges concurred.

(69 N. J. L. 60) PAGININI v. NORTH JERSEY ST. RY. CO.

(Supreme Court of New Jersey. Feb. 24, 1903.) CARRIERS-INJURY TO PASSENGERS-NEGLIGENCE.

1. It is not negligence per se for a motorman to open the gate on the front platform of a trolley car before the car has come to a full stop.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by Michael Paginini against the North Jersey Street Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and PITNEY, JJ.

Vredenburgh, Wall & Van Winkle, for plaintiff in error. Hudspeth & Puster, for defendant in error.

FORT, J. The defendant in error had a verdict in the Hudson circuit for alleged in

juries resulting from his being thrown from the front step of a car of the plaintiff in error. The injury resulted while he was alighting from a moving car. His claim was that the car upon which he was had passed the street at which he was expecting to be discharged; that he went forward, because of the crowded condition of the car, to the motorman, and asked why he had not stopped; that the motorman made no reply, but proceeded to bring the car to a stop, and opened the gate for him to alight; that he then rested one foot upon the step and the other upon the platform, holding the gate with one hand and his violin case with the other; that, thereupon, the motorman, instead of stopping, suddenly put on the power, and he was thrown from the car and injured. This was his testimony. There was a motion to nonsuit, but this, we think, was rightly refused. Another error is assigned upon an exception taken to the refusal of the court to charge the following request of the defendant, as well as to what the court did charge, viz.: "That it was negligence on the part of the plaintiff to step on the front step of this car before it had stopped, and, if that contributed to the accident, he cannot recover." This is what the court said in charging the jury on this request: "That is true, gentlemen. He could not step upon the front step of the car until after it had stopped, unless somebody opened the gate. He certainly knew whether the motorman opened the gate. If the motorman opened the gate, or any one in authority upon that car opened the gate, and he stepped down, why, it would be a negligent act upon the part of the company-if the motorman opened the gate, it would be a negligent act."

It seems impossible to sustain this charge and uphold the verdict. It cannot be but that the jury received the impression from this language that, from the mere fact that the motorman opened the gate, there was a negligent act on the part of the defendant company. This conclusion is irresistible, when taken in connection with some of the statements previously uttered by the judge in the charge. He had already said: "(a) If that is true, gentlemen-if the motorman before that car came to a stop opened the gatethen, by his evidence, he violated one of the rules of the company, and he was negligent in opening the gate and allowing the man to get off before the car stopped." "(b) Did the motorman open that gate and thereby invite the passenger to alight while this car was in motion, or did some one else?"

Taking all these statements of the court together, it must appear that what the court told the jury was that it was negligence for the motorman to open the gate-that it amounted to an invitation for the plaintiff to get off while the car was in motion-and that such negligence was imputable to the defendant company, and that, as a matter of law, the plaintiff, being, of course, free from neg

ligence, could recover. We are unable to give assent to this view of the law. It cannot be said, as a matter of law, that it was negligence per se for the motorman to open the gate before the car came to a full stop; nor can it be said that the opening of a gate by a motorman while the car is moving is an invitation to a passenger to alight from a moving car. This would no more be true than would the act of a conductor in opening the rear door of the car, as it was about to, come to a street and stop, be an invitation for a passenger to get up and step off the car by the rear platform while the car was still in motion. Passengers take obvious risks. Coleman v. Second Avenue R. R. Co., 114 N. Y. 609, 21 N. E. 1064. Because a motorman opens a gate before a car comes to a stop, that will not excuse a person in jumping off a car before it comes to a stop. The mere opening of the gate will not raise a presumption of actionable negligence against the defendant company.

For these errors of the trial court, the judgment is reversed, and a venire de novo awarded.

1. This court will not review the decisions of district courts upon questions of fact. It can only look to see if there is any legal evidence upon which the judgment might be based.

2. In the present case the evidence was held sufficient, under this rule, to support the finding and judgment of the court below.

(Syllabus by the Court.)

Certiorari to First district court of Jersey City.

Certiorari by the state, on the prosecution of Patrick Connolly, against the New York & New Jersey Telephone Company to review a judgment. Affirmed.

Argued February term, 1903, before DIXON and HENDRICKSON, JJ.

Randolph Perkins, for plaintiff in certiorari. Corbin & Corbin, for defendant.

HENDRICKSON, J. The plaintiff in certiorari has brought up for review the judgment of the First district court of the city of Jersey City, recovered against him by the defendant company for damages by the cutting of its subway cable at the junction of Grand street and Pacific avenue, in that city. The plaintiff and one Van Keuren were engaged, with about 60 men in their employ, laying along Grand Street a sixfoot sewer, and the allegation is that on or about August 6, 1901, while digging out the sewer trench, some of the men thus employed, by means of picks with which they were working, cut through the plank covering and the foot square wooden duct below it con