Tolchinsky v. Schiff

47 Misc. 371, 93 N.Y.S. 1073

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

Opinions

Scott, J.

The plaintiff appeals from a judgment in his favor because it is less favorable than lie deems that it should be. The defendants, in a contract for the sale of real estate, agreed to procure the extension, for three years, of a mortgage for $7,000 upon the property to be conveyed. They failed to do this, and plaintiff was compelled to procure the extension himself at an expense of $70 for brokerage, in addition to which he was compelled to renew the loan at a rate of interest greater by one-half of one per cent, per annum than that which it had originally carried. The only question involved is whether plaintiff is entitled to recover by way of damages the increase of interest for the full term of the renewed loan, or whether he can only recover for so much of the increase as has accrued down to the date of trial. The learned justice .below felt himself constrained to limit the recovery to the brokerage paid by plaintiff and so much of the increased interest as had accrued at the date of the trial. In our ‘opinion the plaintiff should have recovered the whole of the increase of interest for the full term of three years. The rule is in an action for breach of a contract of this nature that the plaintiff may recover not only such loss as lie has already incurred but such as he can show, with reasonable certainty, that he will lose in the future. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205. In the present case the amount which plaintiff will lose in the future is capable of exact calculation, and we can see no probable contingency that he will not incur this loss in.one form or another. Tt is not enough to defeat his claim that there may be a possible or remote contingency under which his prospective loss will be less than now appears probable. The appellant does not seek a new trial, but asks that the judgment be modified by increasing it to the amount he is entitled to recover. Of the power of this court to so modify it there is no doubt. Wood v. Baker, 60 Hun, 337 ; Ayvard v. Powers, 25 Misc. Rep. 476; Levy v. Avery, 45 Misc. Rep. 647; 91 N. Y. Supp. 67; Richardson v. Home Ins. Co., 47 N. Y. Super. Ct. 141. In the present case all the facts necessary to justify a judgment for plaintiff have been found by the court below, including the date upon .which the correct amount of that judgment is to be ascertained. ¡No good purpose, therefore, is to be served by sending the case back for a new trial.

The judgment should be modified by increasing it to the sum of $175, with the appropriate costs in the court below, and as modified affirmed, with costs to the appellant. •

Dowling, J., concurs.