Opinion
July 6, 1979
Appeal from the Genesee Supreme Court.
Present — Dillon, P.J., Cardamone, Simons, Callahan and Moule, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Judgment was entered in favor of plaintiff, a masonry contractor, in the total sum of $27,911.75 following jury verdicts awarding him damages on each of four causes of action for improvements made upon defendant's property pursuant to written and oral contracts. This court, for multiple reasons, reversed an earlier judgment in the same action but because "the proof necessary to sustain each cause of action [was] available to plaintiff", we granted a new trial (Lewis v. Barsuk, 55 A.D.2d 817, 818). While it appears that judgment was entered upon the first trial on all five of plaintiff's causes of action, he offered no proof at the second trial on his claim for loss of tools and equipment. Additionally, while one of the bases for reversal of the earlier award to plaintiff on his first cause of action related to "at least six unauthorized deviations from the architect's plans" (Lewis v Barsuk, supra, p 818), defendant abandoned that defense on the second trial. Without recounting the several reasons which required the earlier reversal, it is sufficient to state that on the new trial plaintiff supplied every element of proof essential to sustain each cause of action upon which the jury returned its verdicts. We find no merit, however, to plaintiff's claim that our award of costs to the defendant on the first appeal should be vacated.