Opinion
July 9, 1958
Appeal from the Erie Trial Term.
Present — McCurn, P.J., Kimball, Williams, Goldman and Halpern, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: While there was ample proof of a breach of warranty by the defendant, with respect to the clutches sold by it to the plaintiff, the proof did not adequately establish the extent of the defendant's wrong and the amount of the resulting damage. It is impossible to determine from the record how many of the clutches which the plaintiff replaced for purchasers of the Martin dry cleaning machines had been defectively manufactured by the defendant and how many of them had failed because of improper assembly of the machines by the plaintiff or because of improper operation or maintenance by the customers. Also, there was not sufficient proof of loss of profits due to alleged injury to the good will of the plaintiff to enable the jury to make a fair estimate of the amount of the loss (cf. Moran v. Standard Oil Co., 211 N.Y. 187, 193-195). All concur.