269 A.D. 674 | N.Y. App. Div. | 1945
Appeal by defendant Dorbin Holding Co., Inc., from a judgment of the County Court of Westchester County, entered on the verdict of a jury, in an action upon an alleged oral contract to repair a building. Judgment reversed on the law and the facts and a new trial ordered, with costs to abide the event. The complaint sets forth three causes of action. The first cause' of action is for damages caused by a breach of an oral contract on the part of the appellant, based upon a claim that appellant failed to permit the plaintiff to complete his contract, and is for the loss of profit caused by such breach. The finding of fact implicit in the jury’s verdict that an oral contract was entered into on the 10th day of April, 1943, between the plaintiff and the appellant whereby respondent was to furnish the materials and labor, and to make the repairs to the premises at an agreed price of $5,000, is against the weight of the evidence. The second cause of action is for work, labor and services and materials furnished by plaintiff in repairing the roof on the premises owned by the appellant, in the sum of $582. The proof offered by the plaintiff as to the second cause of action was to the effect that he had entered into a contract to repair the roof for the sum of $900; that the cost of the Carpenter work and the material which he used was $582; and that the cost of waterproofing the roof, which work was to be done by the Universal Roofing Company, amounted to $318. The finding of fact implicit in the jury’s verdict that he did this work, as agreed, is also against the weight of the evidence. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.