Raven v. Smith — 24 N.Y.S. 600

Majority

p. 600

RAVEN v. SMITH,

(No. 1.)

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

Damages—Evidence—Breach of Contkact.

In an action for refusal of defendant to allow plaintiff to perform a contract for grading, where plaintiff gives, evidence that the work could have heen done for a certain amount less than defendant agreed to pay Mm, defendant may give evidence that it would have cost more than he agreed to pay.

Appeal from special term, Westchester county.

Action by John Raven against William R. Smith for services performed under a contract, and for breach of the contract. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before BARNARD, P. J., and PRATT, J.

James R. Bowen, for appellant.

Frederick W. Clark, for respondent.

A large part of the plaintiff’s claim was for damages for a breach of the contract by which the plaintiff was to grade a lot at 14 cents per cubic yard. There was no real dispute as to the contract or as to its breach. After a small portion of the grading had been done, the defendant directed the work to stop. The plaintiff gave evidence that the grading could have been done for S-t cents a yard, which gave 5-¡- cents as the profit which the plaintiff would have made if he had been permitted to complete the work. The defendant offered to prove that the actual cost to a contractor per cubic yard for grading this property would be more than 14-¡- cents. This proof was rejected. The ruling was erroneous. If the proof had been received and credited, there was no basis for a verdict for $1,000 damages, which wTas the sum allowed for the refusal by defendant to permit the plaintiff to go on with the excavation. The judgment should be reversed, and a new trial granted; costs to abide event.