Egbert H. Dudley and Another, Respondents, v. Evelina B. Perkins and Others, as Executors, etc., of George W. Perkins, Deceased, Appellants

Egbert H. Dudley and Another, Respondents, v. Evelina B. Perkins and Others, as Executors, etc., of George W. Perkins, Deceased, Appellants. Sales — action for breach of contract — damages difference between contract price and value of potatoes — evidence — reduction of damages on appeal — extra allowance under Civil Practice Act, § 1513, must be calculated upon amount recovered as modified on appeal. Appeal from a judgment of the Supreme Court in favor of the plaintiffs, entered in the Steuben county clerk’s office on June 20, 1924, upon the verdict of a jury, and also from an order entered on February 4, 1924, denying defendants’ motion for a new trial made upon the minutes, and also from an order entered on June 18, 1924, granting the plaintiffs an extra allowance of costs under section 1513 of the Civil Practice Act. [MAJORITY — Per Curiam.] Per Curiam. The evidence fairly shows that the plaintiffs did not use reasonable effort and diligence to sort, grade, load and ship the Harding, Hathaway and Stamp potatoes, and that the defendants are entitled to recover the difference between the contract price and the value thereof, viz., twenty-five cents per bushel on 1,317 bushels, amounting to $329.25. The extra allowance so far as based upon the plaintiffs’ cause of action must be calculated upon the amount recovered. All concur. Present—Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. Judgment and order denying motion for new trial reversed on the facts and new trial granted, with costs to appellant to abide the event unless the plaintiffs shall within ten days stipulate to reduce the recovery by deducting therefrom the sum of $329.25 with interest thereon from January 30, 1918, to the date of the entry of the judgment, in which event the judgment is modified accordingly, and as so modified affirmed, together with the order, without costs of this appeal to either party, and order granting an additional allowance modified by reducing the allowance to five per cent upon the amount of the damages actually recovered as modified by the above-mentioned deduction, plus five per cent upon the amount of the counterclaim, with interest as demanded in the answer, and as so modified affirmed, without costs.