Long Island Daily Press Publishing Co. v. Uneeda Credit Clothing Stores, Inc.

Lazansky, P. J., Carswell, Adel and Close, JJ., concur; Johnston, J., dissents and votes to modify the order and judgment on the law by providing that the motion be granted in all respects except as to the amount of damages, and, as thus modified, to affirm the order and judgment, and to remit the matter to the Trial Term for proof and assessment of plaintiff’s damages. The papers on the motion are not sufficient to raise any triable issue except that of the amount of damages. The damages should be measured by the contract price less the amount it would have cost plaintiff to carry out the unperformed portion of the contract. (Stumpf v. Merz, 50 Misc. 543 .)