Opinion
January 24, 1908.
G.A. Gregg, for the appellant.
Earl A. Bowman, for the respondent.
The plaintiff has recovered a judgment against the defendant for breach of contract, whereby the former was to do certain work on the latter's premises for the sum of $1,128, the complaint alleging that after the plaintiff had begun the work the defendant gave it to another person and refused to let the plaintiff proceed with it. It appears from the evidence that the plaintiff had arranged to have the work done by sub-contractors, and over the objection and exception of the defendant he was allowed to prove the amount of those sub-contracts. This was error for which the judgment must be reversed. Profits as shown by sub-contracts do not constitute the proper measure of damages in an action to recover damages for preventing the plaintiff from performing his contract with the defendant. ( Story v. New York Harlem R.R. Co., 6 N.Y. 85.) There can be no doubt that this improper measure of damages was adopted, for the justice refused to allow the defendant to prove the reasonable value of the work.
The judgment should be reversed and a new trial ordered, costs to abide the event.
JENKS, HOOKER and MILLER, JJ., concurred; HIRSCHBERG, P.J., not voting.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.