Welch v. Livingston

33 Misc. 116, 67 N.Y.S. 149

Opinion

Per Curiam.

This action was brought to recover for work, labor and services rendered by plaintiff to the defendants, and on conflicting evidence the jury found for the plaintiff. Although it appears a specific contract had been entered into between the parties the plaintiff was not confined to an action for damages for the breach thereof. Where a contract has been partially performed, and the defendants prevent the completion thereof, the aggrieved party may sue on a quantum meruit for the work done. Farron v. Sherwood, 17 E. Y. 227. As the items allowed for the expenses in returning the machine to Baltimore have not been incurred and are not reasonably certain to be incurred, they should have been withdrawn from the consideration of the jury.

The judgment will, therefore, be reduced to $171.79, and as modified, affirmed, without costs to either party.

Present: Beekman, P. J., Giegebich and O’Gobman, JJ.

Judgment reduced to $171.79, and as modified, affirmed, without costs.