
    Acaty Construction Corp., Respondent, v Russ-Bro International Corp., Appellant.
   Judgment of the Supreme Court, Bronx County (Inglehart, J.), entered December 10, 1980 in favor of plaintiff and against defendant, and dismissing defendant’s counterclaim modified, on the law and the facts, with costs to plaintiff, to the extent of setting aside the damage award to plaintiff and remanding the matter for a new trial on the issue of plaintiff’s damages only and, except as so modified, affirmed. In this action by a subcontractor against a general contractor, the trial court, in a bench trial, correctly held that the suspension of work by plaintiff was precipitated by defendant’s failure to make payment to it and plaintiff’s resultant lack of funds. Accordingly, it found that plaintiff had not breached the contract, and, by consequence, plaintiff was entitled to recover on its claim and that defendant’s counterclaim, bottomed on an alleged breach of the contract, should he dismissed. The problem arises from the manner in which damages were calculated. The trial court correctly found that the unit price allocated to each of the items required to be performed by plaintiff was not a proper method for computing damages, inasmuch as the difficulty entailed in the performance of each unit varied. However, by subtracting the amount theretofore paid by defendant to plaintiff from the contract price, its award of damages affected that which it had determined to be improper. Hence, a new trial, on the issue of damages only, is required, in which plaintiff will be compensated on a basis proportionate to the difficulty of the work performed in relation to that of the work left unperformed. Concur — Sullivan, J. P., Carro, Markewich, Lupiano and Bloom, JJ.  