Pappas v. Miles — 104 N.Y.S. 369

Majority

p. 369

PAPPAS v. MILES et al.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Damages—Measube of Damages—Bbeaoh of Contbact—Mode of Estimating Damages.

In an action for failure to furnish an operator and apparatus for giving a moving picture exhibition, where plaintiff purchased films to be used at the exhibition, defendant is liable for the difference between the cost and the marketable value of the films, but not for the entire cost thereof.

p. 370

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Thomas Pappas against Henry J. Miles and others. From a judgment for plaintiff, defendants appeal.

Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Kneeland, La Fetra & Glaze, for appellants.

Alexander Lamont, for respondent.

Action for breach of contract between the parties, whereby defendants agreed to send to Lyric Hall on September 19, 1906, at 8 p. m., apparatus for the giving of a moving picture exhibition and also an operator to give the exhibition. The evidence was sufficient to warrant the trial justice in holding the defendants in default. The only question arises as to the amount of damages.

Plaintiff claims as elements of damage the cost of films purchased by him to be used at the exhibition. The testimony shows that these films are in the possession of the plaintiff and are marketably worth $113.53. This amount should be deducted from the recovery, and the judgment reduced, by deducting $113.53, and $5, excess of costs taxed upon the excessive recovery.

The judgment should be modified, by reducing the same to $141, and, as so modified, affirmed, without costs in this court.