
    John Finck, Respondent, v. Simon Menke, Appellant.
    Ajppeal from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, rendered in favor of the plaintiff.
    L. L. O. Benedict, for appellant.
    Leventritt & Brennan, for respondent.
   O’Gobman, J.

Where a breach of contract occurs, the aggrieved party is not always entitled by way of damages to the stipulated, compensation. The recovery must be confined to the actual loss sustained. It is fundamental that the plaintiff cannot deríve a greater advantage from a breach than from a performance. This rule does not seem to have been followed in the case at bar. The plaintiff agreed to furnish the defendant a mortgage loan at a cost of $130, which was to cover all expenses, including lawyer’s fees as well as brokeráge. The defendant refused to accept the loan, and judgment was awarded against him- for $130. ' It is obvious this is more than the plaintiff could hope to receive if the entire transaction had been consummated. The estimated or probable legal charges and the other expenses incidental to closing a loan, all of which were to be borne by the plaintiff, were evidently not considered in determining the extent of plaintiff’s damage.

The plaintiff also urges that the proof failed to establish a refusal to accept the loan under the terms of the agreement. This contention might be deemed to be well taken if no- evidence other than the written instrument had been received touching the engagement' of the parties. In view of the presence in the case of this parol proof, which was received without objection, we cannot hold-that the proofs fail to disclose a breach on defendant’s part.

For the - error respecting the award of damages, however, the judgment must be reversed.

Beeeman, R. J., and Gieg-erioh, J., concur.

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