Concrete Waterproofing Systems v. Huber, Hunt & Nichols Inc.

Judgment unanimously affirmed with costs. Memorandum: Defendant appeals from á jury verdict awarding plaintiff $71,000 plus interest for defendant’s breach of a contract to perform concrete waterproofing work at the Amherst sewage treatment plant in 1979. Defendant argues that the verdict was the result of sympathy, compromise and confusion. We disagree. The record fails to disclose any evidence that the jury acted arbitrarily or mistakenly, or that the verdict was the result of passion or prejudice (see, Kimberly-Clark Corp. v Power Auth., 35 AD2d 330, 335). A fair interpretation of the evidence supports the jury’s conclusion that defendant breached the 973 contract by failing to pay plaintiff for work satisfactorily performed and properly billed and that plaintiff was justified in not completing its work under the contract because defendant’s breach prohibited plaintiff from doing so (see, O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 56; Amies v Wesnofske, 255 NY 156, 162-163). Moreover, we have examined the court’s supplemental charge and find it proper in all respects. (Appeal from judgment of Supreme Court, Erie County, McGowan, J. — breach of contract.) Present — Callahan, J. P., Doerr, Green, Balio and Davis, JJ.