Federal Concrete Co. v. Mineo

Per Curiam: We think the evidence fairly shows that there was an agreement between the owner and the contractor made in April, 1922, to do certain construction work for $11,452.30, in accordance with plans and specifications then understood and subsequently written out; that there thereafter came a time when the work was taken over by the owner as agent for the contractor; that at that time there was a balance of $6,434.72 of the contract price to which the contractor would have been entitled if he had finished the work according to the plans and specifications. We are not willing to accept the figures of the witness Mesnard as conclusively showing the fair and reasonable cost of completion. We are unable, however, to determine from the present record how much was actually spent by the owner in completing the work originally contracted.for and hence are unable to say whether the sum so spent was fair and reasonable. This uncertain state of the record leads to the necessity of granting a new trial in the interest of justice. (Nocero v. Denitto, 212 App. Div. 363.) The judgment should be reversed and a new trial granted, without costs to either party. All concur. Present—Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. Judgment reversed on the facts and new trial granted, without costs of this appeal to either party.