Nemrow v. Assembly Catering & Supply Co.

121 A.D. 481, 106 N.Y.S. 109, 1907 N.Y. App. Div. LEXIS 1803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1907
• Status: Published

Opinion

Gaynor, J.:

The Justice- gave judgment for the defendant, on the ground that “ there is no proper proof in this case , as to damages ”. The' -notion seems, to. have been that , the measure of -damages was the difference between the rental value of the place with and without the agreement for. heat, hot water and steam- being.kept. If this, were so, the evidence of falling off of customers' and receipts was competent to show a decline in rental or usable value and the extent of it, according to tlie case of Reisert v. City of New York (174 N. Y. 196). But the measure of damages was the falling off in receipts, less the value of any food of the day that could be used thereafter. The net profit is not the measure of damages, for- all of • the expenses of the plaintiff, which had to be paid, out of the receipts, went .on, and they might exceed the net. profit. The rule. of the''seed cases is applicable. The crop failing, the expense of .labor arid money put into it has to be included in figuring up the damage, as well' as the "net' profit (White v. Miller, 71 N. Y. 118). The rule that tjie measure of damages for breaches of contract includes gairis prevented and losses sustained has not been affected-by' the decision in Witherbee v. Meyer (155 N. Y. 446). That decision.only reiterates the limitations of the rule, i. e., the damages must be such as may be made reasonably certain by evidence, and must have been in the contemplation of the "parties in making the contract.

The judgment should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred."

Judgment of tlie Municipal Court reversed and new trial ordered, costs to abide the event.