Opinion
April 2, 1963
Judgment unanimously modified on the law and the facts to the extent of reducing the setoff on defendant's counterclaim to $2,393.78 and, as so modified, affirmed, without costs. The modification refers to two items in defendant's setoff. Defendant was credited with $495, the contract price for the removal of the meters. Defendant did not remove the meters although requested to do so. This item should have been disallowed. Defendant was also credited with $503, an amount it would have earned had the contract not been cancelled. This sum represents the contract price for the performance of the services and defendant concedes it would have had to pay its employees half this sum for the labor involved. Defendant is entitled to set off its loss on this item, namely, $251.50. Its claim for the total amount is based on the assertion that it did not lay off any employees and its expenses were consequently not reduced. This fact is unimportant. Its measure of damage is still the loss of profit which is the difference between the contract price and the reasonable cost of performing the service.
Concur — Rabin, J.P., Valente, Stevens, Eager and Steuer, JJ.