Opinion
May 1, 1951.
Present — Peck, P.J., Dore, Cohn, Van Voorhis and McCurn, JJ.
Judgment reversed, with costs to the appellant, and the matter remitted to an Official Referee for determination of damages. The trial court's finding of breach of contract on the part of defendant was warranted and is affirmed. The measure of damages employed by the court, however, is unsupportable, and the cause must be remitted for an assessment of damages. Plaintiff's damage should be determined on the basis of defendant's profits on business solicited by him for himself during the period he was under contract to plaintiff. Any error in the computation of defendant's damages on his counterclaims can be corrected at the same time. Settle order on notice.