Omega Chemical Co. v. O. J. Gude Co.

108 N.Y.S. 1142

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 5, 1908
• Status: Published

Opinion

PER CURIAM.

Iq, view of the nature of the agreement and the provision for the painting of signs upon the structure by the defendant at the plaintiff’s order, it may fairly be inferred that the parties had in contemplation a possible loss of profits to the plaintiff in the business of maintaining display matter for others, should the structure be removed by the defendant in violation of the contract; but, since all oral testimony to support the claim for special damage was stricken out, there was nothing upon which an award could be based— the written evidence being in no way connected with the controversy and relating apparently to some transaction with which the plaintiff had no concern. To the extent that the judgment is for damages upon the first cause of action for rent under the assignment of the principal lease, it has support in the evidence; hut, because of the failure of proof of special damage, it is excessive by the sum of $125. The judgment will be reversed, and a new trial ordered, with costs to appellant to abide the event, unless respondent shall stipulate to reduce the judgment' to $191.50, in which event the' judgment, as reduced, will be affirmed, without costs.