Hyperlawhypertext legal database Lydecker v. Valentine 78 N.Y. Sup. Ct. 194

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Lydecker v. Valentine

78 N.Y. Sup. Ct. 194 Court N.Y. Sup. Ct. English

Judges Barnard, P. J,, and Dykman, J., concurred.

Delivered by Pratt, J.:

Contents

Majority

p. 194
Elizabeth A. Lydecker, Respondent, v. Henry M. Valentine, Appellant.

Headnote

Contract to pay for room and boan'd — measure of damages for its bi'each.
The proper measure of damages for the breach of a contract to pay for room and board is the profits which the plaintiff would have made if the defendant had carried out his contract, and proof of the amount of such profits must be given in order to furnish a basis for the making of an estimate of such damages.
Appeal by the defendant, Henry M. Valentine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Rockland county on the 3d day of October, 1892, upon a verdict rendered at the Rockland Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
Snider & Hopper, for the appellant.
A. S, Tompkins, for the respondent.

This action was for damages for breach of a contract for rooms and board with the plaintiff.

The complaint alleged that the defendant agreed to pay plaintiff for a room and board fourteen dollars per week from May 1 to November 1, 1890. That he did so pay'until June 1,1890, when he left the premises.

The court charged the jury that the plaintiff was entitled to recover the amount of the contract price for board and room less the amount of $107, which the plaintiff had from other parties for the same room. This we think was error. The damages could not be the whole contract price, but only what the plaintiff lost by defendant not being there, i. e., the profits she would have made if defendant had carried out the contract.

The defendant’s counsel asked the court to charge that proposition, but the court refused, to which exception was taken.

The case was bare of evidence on which damages could be computed. The plaintiff ought to have proved how much profit she

p. 195
could have made if defendant had kept his contract, as a basis for the jury to estimate the damages. (See Wetmore v. Jaffray, 9 Hun, 140 ; De Lavalette v. Wendt, 11 id. 432.)

The judgment should be reversed and new trial granted, costs to abide the event.

Barnard, P. J,, and Dykman, J., concurred.

Judgment reversed and new trial granted, costs to abide event.