West v. Mary Carter Paint Co.

29 A.D.2d 526, 286 N.Y.S.2d 459, 1967 N.Y. App. Div. LEXIS 2703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1967
• Status: Published

Opinion

Judgment from which this appeal and cross appeal are taken, unanimously reversed, on the law, without costs or disbursements, the judgment vacated, and the proceedings remanded to the trial court for a finding of the facts which it deemed essential to the decision (iCFLR 4213, subd. [b]) upon which the judgment was rendered. It may be noted the minutes or record of the first trial are competent and subject to the consideration of the trial court in determining what, if any, damages were actually sustained by plaintiff, arid whether and to what extent plaintiff observed its duty to mitigate damages. Concur — Botein, P. J., Stevens, Eager, Steuer and McNally, JJ.