
    Zara Contracting Co., Inc., Respondent, v. East Coast Lumber Terminal, Inc., Appellant.
   In an action to recover damages for the breach of contract for the rental of machinery, tried before the court without a jury, judgment was entered in favor of plaintiff against defendant' in the sum of $1,700. Judgment modified on the law and the facts by reducing the amount thereof to $1,280.20, and, as so modified, unanimously affirmed, without costs. The evidence adduced does not justify the assessment of plaintiff’s damages at $1,700. Concededly, the rental provided in the agreement of the parties was $700 per month for the Koehring crane, and $500 per month for the Bueyrus shovel, payable at the end of each month. When the machinery was sold in the month of May, 1945, the only rental due, under the agreement, was $1,200, due May 2, 1945. Plaintiff, having elected to sell the machinery between the dates when rental became due, may not recover, in an action on the contract, rental which became due after the sale, and at most was entitled to recover $1,200, with interest to the date of trial. (Civ. Prae. Act, § 480.) Present — Lewis, P. J., Hagarty, Adel and Nolan, JJ.; Aldrich, J., deceased.  