Opinion
November 4, 1957
Present — Nolan, P.J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.
In an action to recover damages for breach of a contract to supply concrete and to cancel a mechanic's lien, the appeal is from a judgment, entered after trial before an Official Referee, in favor of respondents for $7,919.50 and canceling the mechanic's lien. Judgment modified on the facts by striking from the first decretal paragraph "Seven Thousand Nine Hundred Nineteen and 50/100 ($7,919.50) Dollars" and "Eight Thousand Eighty-Seven ($8,087.00) Dollars" and by substituting in place thereof respectively "Four Thousand Five Hundred Eight and 63/100 ($4,508.63) Dollars" and "Four Thousand Six Hundred Seventy-Six and 13/100 ($4,676.13) Dollars". As so modified, judgment unanimously affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. Giving consideration to the proportion of respondents' expenses caused by concrete supplied by appellants and to the 106 cubic yards of satisfactory concrete which were supplied to, and used by, respondents, the award for damages was excessive.