William Brodie, Respondent, v. Herman Fost, Appellant

William Brodie, Respondent, v. Herman Fost, Appellant. Second Department, January 24, 1908. Building contract—evidence — measure of damages — sub-contracts not admissible. On the breach of a building contract by the owner who prevented the contractor from performing, the latter cannot show, on the question of damages, the profits ■ on sub-contracts made by him. Appeal by the defendant, Herman Fost, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff in the sum of $407.36. G. A. Gregg, for the appellant. Earl A. Bowman, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff has recovered a judgment against the defendant for breach of contract, whereby the former was to do certain work on the latter’s premises for the sum of $1,128, the complaint alleging that after the plaintiff had begun the work the defendant gave it to another person and refused to let the plaintiff proceed with it. It appéars from the evidence that the plaintiff had arranged to .have . the work done by sub-contractors, and over the objection and exception of the defendant he was allowed to prove the amount of those sub-contracts. This was error for which the judgment must be reversed. Profits as shown Toy sub-contracts do not constitute the proper measure of damages in an action to recover damages for preventing the plaintiff from performing his contract with the defendant. (Story v. New York & Harlem R. R. Co., 6 N. Y. 85.) There can be no doubt that this improper measure of damages was adopted, for the justice refused to allow the defendant to prove the reasonable value of the work. The judgment should be reversed and a new trial ordered, costs to abide the event. Jenks, Hooker and Miller, JJ., concurred; Hirschber.g-, P. J., not voting. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.