27 A.D.2d 974 | N.Y. App. Div. | 1967
—Judgment unanimously modified on the law and facts and a new trial granted in part, in accordance with the Memorandum, and as modified, affirmed, with costs to the respondent-appellant. Memorandum: The Trial Judge found that there was a breach of contract and that the State was responsible for delay in completion of the contract. We agree with the first of these findings (see Groves & Sons v. State of New York, 27 A D 2d 637), but disagree in part as to the latter. It does not appear from the record that all of the delay was caused by the State. Part, at least, may have been chargeable against the claimant resulting from its own actions, labor disputes, and adverse weather conditions. The record presented before us does not permit computation of damages for delay caused by the State. Therefore, the awarded items of $3,071, $31,236, $4,923.05, and $36,461.10 are reversed. These items are remitted to the Court of Claims for a new trial, upon which it shall be determined what caused the delay, to whom it should be charged or credited, and the net amount of damages caused the claimant thereby, including a consideration of any attempts at mitigation of damages by way of alternate use of equipment which claimant might reasonably have made. In determining the amount of damages caused by delay, testimony regarding Bero’s internal cost allocation for equipment should be received and considered insofar as it may be helpful in ascertaining fair rental values. The amount allowed for breach of contract other than delay was inadequate. The Trial Judge
