Rogers v. J & J Log & Lumber Corp.

103 A.D.2d 826 | N.Y. App. Div. | 1984

— In an action to recover damages for breach of contract, defendants appeal from (1) a judgment of the Supreme Court, Dutchess County (Gurahian, J.), entered August 9, 1982, which, upon a jury verdict, awarded plaintiffs judgment in the principal sum of $61,400.23; (2) so much of a judgment of the same court, dated August 30, 1982, as upon a jury verdict, dismissed their first counterclaim against plaintiffs, and (3) an order of the same court, entered November 2,1982, which denied their motion to set aside the verdicts. H Judgment entered August 9, 1982 reversed, on the law and the facts, without costs or disbursements, and matter remitted to the Supreme Court, Dutchess County, for a new trial on damages. The jury’s finding as to liability is affirmed. 11 Judgment dated August 30,1982 affirmed insofar as appealed from, without costs or disbursements. No opinion. H Appeal from so much of the order entered November 2, 1982 as denied that branch of defendants’ motion which sought to set aside the jury verdict awarding plaintiff $61,400.23 in damages dismissed as academic, in light of our determination on appeal from the judgment entered August 9, 1982, and order otherwise affirmed, without costs or disbursements. No opinion. 11 We reverse the judgment granting plaintiffs judgment in the principal sum of $61,400.23 and remit the matter to the Supreme Court, Dutchess County, for a new trial on damages because the damages that were awarded were erroneously calculated. We note in this regard that the trial court erred in not granting the defendants’ motion to strike plaintiff Rogers’ testimony that he calculated damages using the figures of $450, $325, and $220 per thousand board feet, inasmuch as plaintiffs acknowledged that defendants never agreed to calculate profit sharing using those figures. Mollen, P. J., Gibbons, Weinstein and Rubin, JJ., concur.