75 N.Y.S. 683 | N.Y. App. Div. | 1902
The plaintiff in this action sought to recover the damages sustained by reason of a breach of a contract by which the defendant agreed to rebuild two buildings known as Hos. 20 and 22 Clinton place in the city of Hew York. The amount of damages demanded in the complaint was $10,000 and interest, and the jury found a
By the contract between the parties the defendant was “ to alter, erect and rebuild the buildings upon the premises known as Numbers 20 and 22 Clinton Place in the City of New York, agreeably to certain drawings and specifications made by John H. Brown, architect * * * in a good, workmanlike and substantial manner, and also to find and provide such good, proper and sufficient material of all kinds whatsoever as shall be sufficient for the completing and finishing of all the work on said buildings provided for and mentioned in the said, plans and specifications, all for the above-mentioned sum of twenty thousand eight hundred dollars.’ The complaint alleges that the defendant did not fulfill his part of the agreement or comply with the conditions of the said plan and specifications, and that by and through the negligence, unskillfulness and failure of the defendant to comply with the terms and conditions of the said agreements, plans and specifications, and not erecting the buildings as therein provided, the plaintiff has sustained damages in the sum of $10,000.- A bill of particulars was furnished By the plaintiff in which was specified the instances in which the defendant failed to comply with the plans and specifications. Upon the trial the plaintiff gave evidence which tended to show that the defendant had not complied with the contract. By the contract the plaintiff was to pay the defendant the sum of $20,800 for the work and material by executing, acknowledging and delivering to the defendant a bond secured by a mortgage upon the premises for the sum of $21,000, payable in five years from the 1st of June, 1896, with interest; and it is alleged and not disputed that that bond secured by a mortgage was given by the plaintiff to the defendant and accepted by him.
The most serious question presented on this appeal is as to the measure of damages adopted by the learned trial judge in submitting the case to the jury. It appears that one Harft, a real estate agent, had been the plaintiff’s agent in respect to these buildings, and acted as her agent in negotiating the contract with the defendant. He signed the contract as agent of the plaintiff, and the plaintiff testified that he was her agent; that he notified the defendant of
Harft, who appears to have been a real estate broker, was called as a witness for the plaintiff, and testified as to visiting the buildings during their construction, and as to various particulars in which it was claimed that there was a violation of the contract by the defendant. The witness then was asked whether he could tell with rear sonable certainty what it would cost to repair these defects. This - was objected to on the ground that he was not an expert. This-, objection was overruled, and the counsel for the defendant asked that he be allowed to cross-examine the witness as to his competency as an expert, which was refused, the court stating that the defendant’s counsel could cross-examine afterwards, to which counsel for the defendant excepted. "Wé do not think that this ruling can be sustained. The witness was not a builder. He had testified that as a part of his real estate business he had built for himself and others, and had superintended repairs of buildings during the forty years he had been in business, but there is no evidence that he had any knowledge of the cost of building at this time. The witness answered that it could not be done for less than $10,000, and that some of the defects could not be repaired at all. The witness was then asked whether, if the buildings had been finished according to - the terms and conditions of the contract, he could have leased some of these floors or the entire building. This was objected to, but the objection was overruled and the witness answered “ yes.” As there was no claim made in the complaint or bill of particulars for loss of rent, it is difficult to see how this testimony was competent. The witness was. subsequently allowed to testify as to the amount of rents he would have received for the building if completed according to the terms of the contract. The court charged the jury that they could give no damages for delay, but the evidence was not stricken ; out nor were the jury instructed that they could not allow-the plaintiff for the rents that the witness had testified lie could have receivéd ' if the buildings had been completed- as required by the contract.
The contract requires that the defendant “ Lath all ceilings, partitions and exposed or outside walls, and the cellar ceiling with wire lath; plaster three coats, scratch brown and a hard finish.” It appears to be conceded that this provision of the contract was not complied with and that wood lath was used instead of wire lath. The estimate of these witnesses included removing the wooden and substituting the wire lath and replastering from end to end, which would cost the sum of $1,567; for tearing down and rebuilding the defective walls $2,500; and other changes of this character.
Many other questions were raised by the record, but in view of the conclusion we have arrived .at on this question, they are not necessary to be considered. We only wish to say that we do not approve of all the rulings on questions of evidence.
The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.