Opinion
September 23, 1936.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Lewis, JJ.
Judgment and order reversed on the facts and new trial granted, with costs to the appellant to abide the event. Memorandum: There is integrated in the verdict a finding that defendant's delay in completing its work caused the owner of the building — and through the owner, the plaintiff — loss of rental value of the stores for the months of May and June, 1929, in the amount of $8,330.81. This finding is against the weight of the evidence. We are largely influenced in reaching this determination by plaintiff's own testimony that the bronze fronts were completed about April 1, 1929, and that there was little work of consequence done upon or in the building between April 1 and June 11, 1929. We are also impressed with the inconclusiveness of plaintiff's testimony as to the time it took or should have taken to do the rest of the work on the stores after defendant's work was finished. We do not disapprove the reception of testimony as to the rental value of the premises for the months of May and June, 1929. But we note that the record does not show that the owner of the premises had made any leases of the stores for May or June — whereby any possible claims for damages are barred; nor does it even appear that any opportunities to rent presented themselves. All concur. (The judgment is for plaintiff in an action for damages for delay by a subcontractor. The order denies motion for a new trial on the minutes.)