Opinion
October, 1921.
Judgment and order of the County Court of Westchester county reversed, and new trial granted, with costs to abide the event, unless within ten days plaintiff stipulate to reduce the recovery to fifty-one dollars and forty cents, with appropriate costs. In the event of such stipulation the judgment, as so modified, and the order are unanimously affirmed, without costs of the appeal. Plaintiff on the witness stand admitted that he had not performed part of the labor mentioned in his estimate, aggregating twenty-eight dollars and sixty cents. Conceding that defendant prevented plaintiff from completing the contract, his recovery was limited to the value of the materials furnished and work performed. There was no evidence of loss of profits. ( Carlin v. City of New York, 132 App. Div. 90; Gallagher v. Hirsh, 45 id. 467.) Rich, Putnam, Kelly, Jaycox and Manning, JJ., concur.