Lord v. Comstock — 52 N.Y. Super. Ct. 548

Majority

p. 548

JAMES BROWN LORD, Respondent, v. GEORGE WELLS COMSTOCK, Appellant.

Headnote

Damages—"breach of contact by architect in failing to build house as agreed —measure of damages—loss of tenant.

Before Van Vorst and Freedman, JJ.

Decided December 7, 1885.

Appeal from order disallowing and striking out certain interrogatories proposed by defendant to be annexed to commission for examination of witness out of the state.

Action to recover for plaintiff’s services as architect in altering one house, and in building another, for the defendant.

The answer admits the contract of employment, but sets

p. 549

up that by the terms of that contract, the new house was to be constructed for the use of, and to meet the ordinary requirements of, a small family of moderate means ; that the plaintiff so negligently and unskillfully constructed the same that, when completed, it did not answer said purposes ; and that in consequence thereof, the defendant lost a tenant at an annual rent of $360, expended $300 in alterations, and was damaged in his reputation as a landlord to the amount of $1,000. The object of the excluded interrogatories was to examine the alleged lost tenant, not as to the rental value of the house during the time it took to make the alleged necessary alterations, but as to the making of his lease, a supposed breach by defendant of certain conditions on which said lease had been made, the tenant’s consequent refusal to comply with his agreement, and certain conversations between the tenant and the defendant, or his agent.

The Court at General Term (after stating the facts as . above), said :—“ The whole line of this proposed testimony is clearly immaterial, for, admitting the charge of negligent and unskillful construction, the defendant’s measure of damages can only be either the difference in value between the product of plaintiff’s negligent and unskillful work, and the house as it should have been, or else the cost of remedying the defects, and, if time was of the essence of the contract, loss of rental value during the time required to make the necessary alterations. Unless time was of the essence of the contract, which does not appear, it was not legally within the contemplation of the parties that the house should be rented before it was placed completed in the possession of the defendant. And in no aspect of the case as disclosed by the pleadings, can the plaintiff be held responsible for the loss of a year’s rent upon a lease, with the making of which he had nothing to do. All damages which, from a legal point of view, were not within the contemplation of the parties at the time of the making of the contract, are too remote (Sparks v. Bassett, 49 Super. Ct. 270).”

p. 550

George Carlton Comstock, for appellant.

Lord, Day & Lord, for respondent.

Opinion by Freedman, J.; Van Vorst, J., concurred.

Order affirmed, with costs, &c.