Opinion
December 17, 1973
In an action by a general contractor against a subcontractor to recover damages for breach of contract and for fraud in the inducement of the contract, plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered May 17, 1973, after a nonjury trial, in favor of defendant and against plaintiff, upon an award of damages to defendant of $14,400, with interest, upon a counterclaim. Judgment reversed, on the law and the facts, and new trial granted solely as to defendant's damages, with costs to abide the event. In our opinion, the trial court correctly found that there had been a breach of contract by plaintiff. The award of damages to defendant was based on testimony in behalf of defendant that its anticipated profits would have been at least 15% of the contract price. Such evidence was speculative. While damages need not be calculated with mathematical certainty to permit a recovery therefor, there was insufficient proof to form a basis of computation for any alleged loss of profits ( Dubiner's Bootery v. General Outdoor Adv. Co., 10 A.D.2d 923). A new trial should be held for the purpose of receiving evidence as to what damages, if any, were sustained by defendant. Hopkins, Acting P.J., Latham, Gulotta and Christ, JJ., concur.