Kravetz v. Ichabod Restaurant, Inc.

91 A.D.2d 1193, 459 N.Y.S.2d 183, 1983 N.Y. App. Div. LEXIS 16547

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1983
• Status: Published

Opinion

— Judgment unanimously reversed, on the law and the facts, without costs, and matter remitted to Monroe County Supreme Court for a new trial on the issue of damages only. Memorandum: The trial court found that the defendants breached a written contract for the sale of a mortgage to the plaintiff and it awarded the plaintiff the sum of $9,000 damages. The proper measure of damages is the difference between the market value of the mortgage at the time of the breach and the contract price. In determining the value of a mortgage, there is no hard and fast rule; it is a matter of judgment and all reasonable factors should be taken into consideration (Lent v Eidt, 263 App Div 73, 75, affd 288 NY 603, citing Matter of New York Tit. & Mtge. Co., 277 NY 66, 80). Although the plaintiff submitted no evidence of market value of the mortgage, the court mistakenly found that a bank representative testified that the mortgage was worth $32,000. The only testimony concerning the value of the mortgage was given by defendant on cross-examination and that testimony was equivocal. We affirm the finding of the trial court that the defendants breached the contract. Because of insufficient evidence of the market value of the mortgage, however, the judgment is reversed and the matter remitted to Monroe County Supreme Court for a further trial on the issue of damages only. (Appeal from judgment of Supreme Court, Monroe County, Cicoria, J. — breach of contract.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Schnepp, JJ.