Opinion
May 19, 1911.
Norman P.S. Schloss, for the appellant.
Samuel Cohn, for the respondent.
There was evidence in this case which, if believed, justified a verdict for the plaintiff, and the legal questions as to his right to recover were satisfactorily disposed of by the trial justice. There is no evidence, however, to sustain the amount of damages awarded, and upon this question a wrong theory seems to have been adopted. The plaintiff's grievance is that defendant unreasonably revoked a parol license to enter upon his land and remove a frame building therefrom. The jury, by its verdict, has found that such a license was given and that it was unreasonably revoked. The damage which plaintiff suffered is represented by the value of the house if he had been permitted to complete its removal, less the expense incurred in removing it. The plaintiff was allowed to prove the incidental damage which he claims to have suffered because he was prevented from erecting the house on another lot which he owned, and the award of damages is apparently based upon this evidence, since otherwise it is wholly unsupported by any proof. In Wetter v. Kleinert ( 139 App. Div. 220) a contractor for removing a building sued the owner for damages for not permitting him to complete his contract. The contractor had made a sub-contract for the sale of the materials, and the plaintiff was permitted, at the trial, to prove the profit he would have made upon his sub-contract if he had been able to carry it out. This was held to be error, the court quoting the following from Develin v. Mayor ( 63 N.Y. 8): "Any incidental advantages which the contractor could secure by favorable contracts for parts of the work were not in the minds of the parties, and cannot avail to the party seeking damages for the violation of the agreement. * * * A party is not entitled, in seeking compensation for the loss of gains upon a breach of the contract by the other party, to the benefit of or to be indemnified against a contract made with third persons, not in the contemplation of the parties when the agreement was made. * * * The advantages and benefits of the sub-contracts are quite too uncertain and contingent to be taken into consideration in estimating the profits the original contractor might have made under his contract." In principle the foregoing rule is applicable to the case at bar. All the defendant had agreed to do was to permit the plaintiff to remove the building from the lot. By unreasonably revoking his permission and demolishing the building he deprived plaintiff of the value of the building as it stood on the lot, coupled with the right to remove it. What plaintiff expected to do with the building after he had removed it was no concern of defendant's, and the incidental profit to be made from some contemplated use is altogether too remote, contingent and uncertain to be charged against defendant by way of damages.
It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., CLARKE, MILLER and DOWLING, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.