Opinion
November 3, 1967
Appeal by both parties from a judgment of the Supreme Court awarding damages against the defendant for breach of contract entered after a nonjury trial before the court and by the plaintiff from an order of the said court refusing to set aside the judgment as inadequate. The record establishes that the defendant did breach his commission agency contract with the plaintiff in that he solicited Cities Service customers for the sale of another company's petroleum products within a period of time prohibited by the agency contract. The trial court erroneously limited damages to the period of time specified in the contract and we find that the evidence shows damages greater than the award of the trial court. The record as a whole establishes damages to the plaintiff in the amount of $5,300 and, accordingly, the judgment must be modified. Order reversed, on the law and the facts, and motion granted; and judgment modified, on the law and the facts, so as to increase the award to $5,300 with appropriate interest and costs and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.