Opinion
May 5, 1948.
Appeal from Ulster County Court.
The action was for a balance alleged to be due for the reasonable value of work and material in plaintiff's oral undertaking to install a hot air furnace in defendant's house. Defendant denied there was anything due plaintiff and counterclaimed for damages alleged by reason of a fire which partially burned the house and which she alleged was due to plaintiff's failure to perform his contract, and his negligence and poor workmanship. There was a conflict in the evidence whether the fault and negligence of one party or both caused the fire. During the trial, over defendant's objection and exception, plaintiff was allowed to plead and prove defendant's recovery of fire insurance on account of the fire, and the jury was in effect told that the amount thereof was to be deducted from any damages it found for defendant. This was prejudicial error. ( Merrick v. Brainard, 38 Barb. 574, affd. sub nom. Merrick v. Van Santvoord, 34 N.Y. 208; Bridges v. New York Central H.R.R.R. Co., 72 N.Y. 26; Collins v. New York Central H.R.R.R. Co., 5 Hun 503, affd. 71 N.Y. 609; Drinkwater v. Dinsmore, 80 N.Y. 390; Gusikoff v. Republic Storage Co., 241 App. Div. 889; 25 C.J.S., Damages, § 99.) Judgment and order reversed on the law and a new trial ordered, with costs to appellant to abide the event. Hill, P.J., Brewster, Foster, Russell and Deyo, JJ., concur.