
    John J. Deery and James F. Woodmencey, as Ancillary Executors, etc., of Bernard Cassidy, Deceased, Respondents, v. John T. Williams, Appellant.
    
      Breach by a purchaser of a contract of sale — proof, in reduction of damages, of the value of the article retained by the vendor.
    
    In an action by a vendor to recover damages arising out of the refusal of the vendee to accept certain granite which the latter had contracted to buy, but which, owing to such refusal, remained in the possession of the vendor, the vendee is entitled upon the question of damages to show the value of the granite, the title and possession of which is retained by the vendor.
    Appeal by the defendant, John T. Williams, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rew York on the 22d day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Richard T. Greene, for 'the appellant.
    
      George E. Gartland, for the respondents.
   Rumsey, J.:

Two causes of action were set out in the complaint. As to the first, no' question arises which need be considered here. In the second cause of action it was alleged substantially that Cassidy, the plaintiffs’ testator, made a contract with the defendant to deliver to him certain granite bases and sills for a building at the corner of Broadway and Broome street, in the city of Rew York, for which the defendant was to pay. Cassidy the sum of $2,277.50. It was further alleged that Cassidy finishéd the granite as agreed pursuant to the plans delivered to him, and offered it to the -defendant, who refused to accept it and notified Cassidy that he would not accept it and would not perform the conditions of the contract upon his part. It is further alleged' that Cassidy had performed all the com ditions on-his part and had finished the granite as agreed, and that the granite so executed and finished was valueless for any other building. The complaint then alleged that, by reason of the breach of the said contract by the defendant,. Cassidy had sustained damages in the ■ sum of $2,000, for which the plaintiff demanded judgment.

It is evident that the cause of action was to recover damages for the breach of the contract to accept and use the granite.; and in such action the measure of damages is the difference between the contract price and the market value of the property at the time and place of delivery. ( Windmuller v. Pope, 107 N. Y. 674.)

It was.conceded that none of the granite was received by the-defendant, but that it all remained in the possession of the plaintiffs,, except a small portion which they, had sold. Upon the trial the defendant offered to show, at various times and in various ways, the. value of the granite which still remained in the possession- of the plaintiffs. The defendant insisted that this evidence was competent ■upon the question of damages, but in this claim he. was overruled by the court and the evidence was excluded against his objection and exception. This ruling of the court was clearly error. The granite was still in the possession of the plaintiffs. They had never parted with the possession or the-title of it, and their complaint was that the defendant had refused to accept it and to pay for it as he had agreed. If he had received the. granite and paid for. it, their profits would have been the difference between what it would have cost them to procure it and prepare it for delivery and the price which would have been paid to them. As the granite never was taken out of their possession and they still had it, their loss, by the refusal ’of the defendant to accept it, was clearly the difference between the price which the defendant was to pay for it and the expense of procuring it and preparing it for delivery under the contract, less the market value óf the granite which still remained. on their hands. They claimed that the granite was utterly valueless for any other purpose, and they gave evidence tending to show that proposition. If that had been true it Would have shown that the granite was:of.no-value and would have materially increased the damages which-the • plaintiffs, were entitled to recover; That fact, .therefore', was. one-which the defendant had a right to controvert,, and- the refusal-.- to permit him to do so was error:,, for - which this judgment must. be.reversed;

We have not thought it necessary to examine any other question in the case.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., •concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  