74 A.D.2d 601 | N.Y. App. Div. | 1980
In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County, entered September 11, 1978, which, after a nonjury trial, is in plaintiff’s favor. The plaintiff cross-appeals from the same judgment insofar as it limits its recovery to the principal amount of $21,033.95, plus interest, costs and disbursements. Judgment modified, on the law and on the facts, by increasing the principal amount of the recovery to $22,539.34. As so modified, judgment affirmed, without costs or disbursements, and action remitted to Trial Term for entry of an appropriate amended judgment, including interest, costs and disbursements. The plaintiff, Tri-Mar, was general contractor on a project. Tri-Mar entered into an oral agreement with the defendant, ITCO, under which ITCO was to do certain work as a subcontractor. The agreement, which involved a total sum of $229,000 provided for Tri-Mar to make monthly installment payments to ITCO based on monthly requisitions to be submitted to Tri-Mar. Tri-Mar
$46,738.59 (carpenters’ wages) 9,128.00 (fringe benefits) 11,155.95 (Kamco Supply Corp. invoices) 90.10 (Marino Industries Corp.) $67,112.64
Tri-Mar’s total cost, therefore, was $251,539.34, a sum arrived at by adding the $67,112.64 representing the cost of completion to payments previously made to ITCO amounting to $184,426.70. Since Tri-Mar is entitled to recover the difference between the contract price of $229,000 and this total of $251,539.34, the judgment should be modified to the amount of $22,539.34, plus interest, costs and disbursements. Laser, J. P., Gibbons, Gulotta and Cohalan, JJ., concur.