Opinion
July 11, 1960
In an action based on controversies arising out of the construction of two dwellings, the corporate defendant appeals from a judgment of the Supreme Court, Westchester County, rendered March 17, 1958, in favor of plaintiff against it on the third cause of action, after a jury trial. This cause is one to recover damages allegedly sustained as a result of the said defendant's breach of a written agreement which was intended to settle the controversies by the performance of stated conditions. At the opening of the trial, plaintiff, upon the court's direction that it elect between proceeding on the first and second causes or on the third and fourth causes, elected to proceed upon the latter. The fourth cause was dismissed before the case was submitted to the jury. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. The written agreement provides for the joint determination by the parties' respective representatives of certain costs, including those for variations and additions to the specifications. In our opinion, the plaintiff failed to establish that said representatives had jointly determined the cost of all of the items embraced in the amount of the recovery. It was also error for the trial court to receive in evidence the opinion of the plaintiff's president as to the reasonable value of extra or additional work and materials supplied, and then to charge the jury that, in accordance with such testimony, the said values must be added to the contract price. Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.