31 A.D.2d 605 | N.Y. App. Div. | 1968
Judgment is unanimously modified on the law to dismiss the complaint as against Carlyle Construction Corp., and on the law and on the facts to order a new trial against Delma Engineering Corp., only with respect to the damages alleged to have been suffered by the plaintiff Mabux Restaurant, Ltd., by way of loss of profits, with $50 costs and disbursements to defendant Carlyle Construction Corp., and as between the defendant Delma and plaintiff Maibux Restaur,ant, Ltd., costs to abide the event, and without any other costs or disbursements, and as modified the judgment is affirmed. Disregarding the hearsay evidence and other incompetent testimony, there is no proof whatsoever to show that defendant Carlyle Construction Corp., was the owner or the builder of the adjoining property. Therefore the complaint should he dismissed as against Carlyle Construction Corp. We find that there is no competent proof to establish damage by way of loss of profits, which the plaintiff Mabux Restaurant, Ltd., asserts that it would have realized from the operation of its outdoor restaurant, but for the damage done to the property. Loss of profits need not be proven to an exactitude; but can be sustained if reasonably supported by the evidence. (Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359.) However, we may not sustain a finding of damages through loss of profits where it is evident that it was arrived at upon the basis of a patently improper formula.