Zucker v. Ainwood Motors, Inc. , 11 Misc. 2d 887 ( 1958 )

Per Curiam.

On the record presented the court was justified in submitting to the jury the issue of the fair market value of the ear on the day of defendant’s breach. However, the extra items totalling $191.55 plaintiff paid in the purchase of a similar car from another dealer are not proper items of damage since they were not included in the contract of sale between plaintiff and defendant. The purchase of the car from another dealer cost $3,560.82 (after credit given for an old car turned in) whereas the agreed price with defendant was $3,193 (after credit to be given for an old car to be turned in), resulting in an excess cost of $367.82, and deducting therefrom the extra items above mentioned totalling $191.55, leaves a balance of $176.27, which, added to the down payment of $200, is the total amount plaintiff is entitled to recover.

The judgment should be modified by reducing it to the sum of $376.27 and as modified affirmed, without costs.

Hecht, J. P., Aurelio and Tilzer, JJ., concur.

Judgment modified, etc.