Polstein v. Miller

49 Misc. 615, 97 N.Y.S. 211

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Bischoff, J.

The plaintiff’s claim for $316, which the judgment awards him in full, was made up of an item of $16, the balance due for work upon a building at One Hundred and Twenty-fourth street, and an item of $300, the agreed price for a gross amount of work to be done upon another building on Sixtieth street. It appeared that the defendant had prevented complete performance of the work upon the latter building under the contract, and the plaintiff’s testimony left no doubt of the fact that he had not fully performed the work — indeed he stated that he had finished only three-quarters of it, while leaving materials sufficient upon the premises to finish it. There was no proof of the reasonable value of the work done or omitted, nor of prospective profits lost; and the recovery of $300 is based, apparently, on nothing other than the contract price for the work. This contract, however, which stated only a gross price for completed work, was no measure of the value of the partial work done, and a recovery of the full price was thus, to some indeterminable degree, excessive and unwarranted by the proof. Rosenbloom v. Mass, App. Term, November 3, 1905.

There must be a new trial of the cause.

Scott and MacLban, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.