Lichtenstein v. J. Ohl, Inc. , 233 A.D. 772 ( 1931 )

As to the individual defendant, judgment reversed upon the law and the facts, with costs against respondent, and complaint as to said defendant dismissed, with costs. As to this defendant the determination is contrary to the evidence. As to the corporate defendant, judgment modified by reducing the amount of the damage to $2,840, and as so modified unanimously affirmed, without costs. Plaintiff’s damage is measured by the value of the use of his building, while being deprived of such use, which in this case was approximately four and one-half months. The evidence shows that by reason of defendant’s neglect to remove promptly the shoring beams from plaintiff’s premises, the latter was denied the use of his new building from February 1, 1929, when the building was to be finished under the first contract, to July 28, 1929, the time when the building was finished under the second contract. It being “ impossible to measure them [damages] to a nicety ” (Barnes v. Midland R. R. Terminal Co., 218 N. Y. 91, 101) we deem it fair upon the evidence to compute plaintiff’s net rentals at $520 per month and allow four and one-half months, to which is added $500 for the increased cost of the second contract, making total damages of $2,840. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P. J., Kapper, Carswell, Scudder and Davis, JJ., concur. Settle order on notice.