Raven v. Smith

24 N.Y.S. 600, 53 N.Y. St. Rep. 857

Opinion

BARNARD, P. J.

A large part of the plaintiff’s claim was for damages for a breach of the contract by which the plaintiff was to grade a lot at 14 cents per cubic yard. There was no real dispute as to the contract or as to its breach. After a small portion of the grading had been done, the defendant directed the work to stop. The plaintiff gave evidence that the grading could have been done for S-t cents a yard, which gave 5-¡- cents as the profit which the plaintiff would have made if he had been permitted to complete the work. The defendant offered to prove that the actual cost to a contractor per cubic yard for grading this property would be more than 14-¡- cents. This proof was rejected. The ruling was erroneous. If the proof had been received and credited, there was no basis for a verdict for $1,000 damages, which wTas the sum allowed for the refusal by defendant to permit the plaintiff to go on with the excavation. The judgment should be reversed, and a new trial granted; costs to abide event.