Opinion
June, 1936.
Present — Lazansky, P.J., Hagarty, Carswell, Davis and Adel, JJ.
In an action to recover damages for breach of a contract to make a lease of certain property for a term of ninety-nine years, the plaintiff had a verdict for $30,750 general damages, based on the rule in Bondy v. Harvey ( 218 App. Div. 126), and a directed verdict for two items aggregating $1,764.62. On motion by the defendant for a new trial the motion was granted unless the plaintiff stipulated to reduce the damages to $20,000, with interest from July 1, 1932. Such stipulation was given and judgment was entered for the plaintiff. Order, in so far as it grants, upon certain conditions, defendant's motion to set aside the verdict and for a new trial, modified by striking from the second ordering paragraph thereof the provision reducing the verdict in its first and second phases by eliminating therefrom the items of $1,200 and $564.62, aggregating $1,764.62. These items we deem established as damages that had accrued at the time of the trial and were independent of the damages for anticipatory breach of the contract to lease the property. The judgment is modified accordingly by increasing the amount thereof by the sum of $1,764.62, with interest thereon from July 1, 1932. (See Civ. Prac. Act, § 584-a; Miller v. Lucey, 223 App. Div. 567; Costello v. Forest Hills Dwellings, Inc., 227 id. 736.) As so modified the judgment and the order are unanimously affirmed, with costs to the plaintiff-respondent.