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Birnhak v. Hollender

29 Misc. 640 Court N.Y. App. Term English

Delivered by MacLeae, J.

Contents

Majority

p. 640
Max Birnhak, Respondent, v. Henry Hollender, Appellant.
(Supreme Court, Appellate Term,
November, 1899.)

Headnote

Contract — Damages, where performance of an executory contract is-prevented.
Where performance of an executory contract to furnish work and materials is prevented by the other party, the measure of the-contractor’s damages is not the full contract price, but only the difference between it and what it would have cost him to do the-work and furnish the materials.
Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, fifth district, borough of' Manhattan.
p. 641
J acob Eieger, for appellant.
Edward J. Kenney, Jr., for respondent.

Testimony was given at the trial of this action tending to establish that the plaintiff undertook with the defendant to furnish certain material, and, by himself and others, to do certain work for the sum of sixty dollars, and that after part performance he was prevented by the defendant from completing his undertaking. Thereupon he was awarded a judgment for the full sum of sixty dollars. This was contrary to law, for, according to the well-settled rule respecting the measure of damages in an action for a violation of an executory agreement, the party who has been wrongfully deprived of the gains and profits may recover as an equivalent, and by way of damages, only the difference between the contract price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would have cost him to perform the contract. Devlin v. Mayor, 63 N. Y. 8 ; Masterton v. Mayor, 7 Hill, 61 . The judgment should be reversed.

Freedmae, P. J., and Leveetbitt, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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