Opinion
Argued January 13, 1964
Decided January 23, 1964
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, EUGENE F. SULLIVAN, J.
Saul H. Alderman for appellant.
Charles E. Cooney, Jr., and James A. Martin for respondent.
Order appealed from affirmed, with costs, judgment absolute ordered for plaintiff on the stipulation, and case remitted to Supreme Court, Onondaga County, for determination of the amount of damages sustained by plaintiff because of the nonperformance of the covenant requiring defendant to convert the second floor to provide banquet and restaurant facilities. Such damages are to be limited to the reasonable cost of the work, materials and fixtures necessary to effect such conversion as will be appropriate and in keeping with the lower floor restaurant (see Jones v. Seligman, 81 N.Y. 190, 196; Lawrence v. Saratoga Lake Ry. Co., 36 Hun 467, 473; 1 Corbin, Contracts [1963 ed.], § 95, p. 404). Parol evidence as to conversations or oral promises concerning particular work, fixtures or fittings will not be admissible on the trial of the issue of damages.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and SCILEPPI. Taking no part: Judge BERGAN.