Opinion
December 20, 1948.
Present — Peck, P.J., Glennon, Cohn, Callahan and Shientag, JJ.
Judgment unanimously reversed and a new trial ordered unless plaintiffs stipulate to reduce the judgment as entered to the sum of $50,164.09, in which event said judgment as so modified is affirmed. The said sum of $50,164.09 is based on the amount of damages sufficiently established by plaintiffs and is computed as follows:
Bituminous 84,539 tons at $1.25 $105,673.75 Anthracite Pea 4,576 tons at $1.45 6,635.20 Anthracite Buck No. 1 20,904 tons at .70 14,632.80 Buck No. 2 and Rice 8,507 tons at .70 5,954.90 ___________ $132,896.65 Less sums allowed by trial court on defendant's claim, concerning which there is no dispute in this court, 82,732.56 __________ $50,164.09. Settle order on notice.