Majority
p. 857John Raven, Resp’t, v. William R. Smith, App’lt. (Supreme Court, General Term, Second Department, Filed July 28, 1893.)
Headnote
Contract—Breach—Evidence.In an action for breach of contract to do the grading of a lot at 14 cents per cubic yard, by the refusal of defendant to allow plaintiff to proceed with the work, plaintiff testified that the grading could be done for 81 cents; defendant offered to show that the actual cost to the contractor would be more than 141 cents, which proof was rejected. Held, error.
Appeal from judgment in favor of plaintiff.
James R. Bowen, for app’lt; Frederick W. Clark, for resp’t.
A large of the claim was for damages for a breach of the contract by which the plaintiff was to grade a lot at fourteen cents per cubic yard. There was no real dispute as to the contract or as to its breach. After a small portion of the gr.ading had been done, the defendant directed the work to stop. The plaintiff gave evidence that the grading could have been done for eight and a half cents a yard, which gave five and a half cents as the profit which the plaintiff would have made if he had been to the work. The
p. 858
defendant offered to prove that the actual cost to a contractor per cubic yard for grading this property would be more than fourteen and a half 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 was 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.
Pratt, J., concurs; Dykman, J., not sitting.