Opinion
June 26, 1962
The corrected final judgment entered on December 28, 1961 is unanimously modified, on the law and the facts, and without costs to any party, to the extent of reducing said judgment to the amount of $19,227.38, plus the costs and disbursements taxed in the court below, including in such costs and disbursements the Referee's fee in the sum of $1,750, and is otherwise affirmed. We find upon the proof presented to the Referee that the overhead expenses of plaintiff sales agency were ascertainable and allocable to the sale of the 159 vehicles involved in this action to enforce a restrictive covenant in an employment contract; and that such overhead expenses should properly have been deducted from the assessment of damages in favor of plaintiff ( Cutter v. Gudebrod Bros. Co., 190 N.Y. 252; Tremaine v. Hitchcock Co., 23 Wall. [90 U.S.] 518). Upon the evidence submitted to the Referee the overhead cost allocable to each car was $75, or a total of $11,925 for the 159 vehicles. Settle order on notice.
Concur — Botein, P.J., Valente, Stevens, Steuer and Bergan, JJ.