220 A.D. 178 | N.Y. App. Div. | 1927
The complaint in this action was dismissed on the defendant’s motion after plaintiff’s counsel had opened to the jury. The motion appears to have been granted because in the opinion of the learned trial court the complaint demanded an erroneous measure of damages and the opening of counsel stated the measure of damages which he expected to prove, which the learned court deemed not awardable in this class of action.
The action was brought to recover damages for loss of profits arising out of a breach of a contract under which the plaintiff
The exact allegation of the complaint as -to damages is as follows: “ By reason of defendant’s said repudiation and breach of said building contract as modified, plaintiff has been damaged in the sum of Fifteen thousand ($15,000) Dollars, being the difference between the contract price of Two hundred and five thousand ($205,000) Dollars, less such deductions as might be made from said price as set forth in Paragraph VIII hereof, and what it would have cost the plaintiff to perform said building contract as modified.”
Nothing is better settled, however, assuming that this be an incorrect measure of damages, than that, if a person has a legal cause of action for some relief, the mere fact that he alleges a wrong measure of damages will not justify a dismissal of his complaint. The defendant here claims, however, that plaintiff’s counsel insisted on making proof on this rule of damages, and that, therefore, the learned court was justified in dismissing the complaint on the statement of the nature of the proof to be made of damages. But this seems to us an erroneous view. The learned trial court should have taken the proof, restricting the items to the proper rule, and if then no damages were shown, it might have dismissed the complaint.
Nevertheless, we think the measure of damages set forth in the complaint was, with slight modification hereafter described, the correct measure of loss sustained, and that the learned court, in setting forth what its notion was of the proof required as to damages, stated a correct rule as follows: “ The contract which seems to have been breached is that sued upon and the damages to which the plaintiff thereby became entitled was the difference between the contract price and the actual cost of the construction of the building originally contracted for, without regard to the cost of construction of the building which was finally erected; ” with the addition that deductions as provided for in Exhibit A annexed to the com
The ruling dismissing the complaint on the opening of counsel, therefore, was error, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Dowling, P. J., Finchs, O’Malley and Proskauer, JJ., concur.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.