
    Albert Victor King, Respondent, v. Hudson River Realty Company, Appellant.
    First Department,
    December 30, 1910.
    Appeal—when issues not raised by objection—conijract — agreement to build streets and sewers — effect of failure to make timely performance — measure of damages.
    fact to build abutting it a year was a reasónWhere a vendor of lands sued for the breach of his cont: streets, sidewalks and sewers acquiesces in a ruling tha able time within which to make the improvements, an exception to the exclusion of evidence showing the character and extent of the improvements in which the defendant was then engaged presents no question for- review upon appeal.
    ' Semble, that the failure to do the-work within said time, although it did not amount to a total breach of the contract, gave the vendee a right to rescind.
    The damage on a failure to complete the improvements! according to the con- > tract is the difference between the value of the property as it actually was when the work was completed and as it would have been if the work had been done according to said standard.
    Evidence in such action examined, and held, insufficient to support a verdict for substantial damages.
    Appeal by the defendant, the Hudson Rivei Realty Company, from a judgment of the Supreme Court in fav’pr of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Franklin Pierce, for the appellant. '
    
      Alexander S. Bacon, for the respondent.
   Miller, J.:

. The defendant owned and was engaged in improving, a tract of land in Bergen county, N. J., opposite Fort Lee Ferry, on the north side of what is known as Columbia Avenue.” An affiliated bompany, the Central Land Company, owned the land south, of Columbia avenue. On the 9th of May, 1906, the defendant contracted to convey to the plaintiff certain lands abutting on Columbia avenue and Cumbermead road, south of Columbia avenue. Two thousand five hundred dollars was paid down, and, upon the conveyance being made, mortgages for $22,500 were taken for the balance of the purchase price. The mortgages were assigned by the defendant to the Industrial Savings and Loan Company, and the plaintiff having defaulted in his interest, a foreclosure was begun in May, 1907, resulting in a sale of the premises in November, 1907. The contract contained this provision: “Asa part of the consideration for the said purchase price, this company hereby agrees .to build proper streets and- sidewalks, as shown by said map," on which these lots abut, and put in a sewer.” This action is brought for breach of that agreement.

The evidence shows that a substantial part at least of the work agreed upon had been done by September, 1907. The streets had been graded and macadamized, gravel walks had been laid and sewers had bee.n put in. The court ruled as matter of law that “ proper streets and sidewalks ” meant the kind of streets and sidewalks constructed by the defendant on the north side of Columbia avenue. No exception appears to have been taken to that ruling although the appellant now claims that the character of the improvement on the north side differed widely from that on the south side. The action was brought on the theory of a total breach of the contract, and the learned counsel for the respondent now argues that, although some trifling work was done, there was substantially a total failure of performance. However, as we read this record, the only question of fact on this head was whether the improvements, as finally completed, complied with the standard fixed by the court, it being claimed that the crown of the streets was not as high as that on the north side of Columbia avenue ; that, the sidewalks and gutters were not in as good condition ■; that tllere was no curbing and that a manhole of .the sewer projected above the surface of the street. I

The court also ruled, as matter of law, that j a year was a reasonable time.within which to make the improvements, and excluded evidence to show the character and extent of lie improvements in ■which the defendant was then engaged. The exceptions to the exclusion of such evidence present no. question for review, for the reason that the defendant acquiesced in thej ruling that a.- year was a reasonable time. The year expired May 9,. 1907, and while some work had been done by the defendant at j the time, the work ■ agreed upon was substantially undonp, except that there was a sewer in one of the streets upon which the property abutted at the time .the contract was made. However, the failure to-do the'work in time-did not amount to a total breach of the contract. It may have given the plaintiff the .right to rescind the contract, but that right was not exercised. ¡

According to the said rulings, acquiesced id by both sides, the plaintiff was entitled to the damages sustained by the delay beyond the year in performing- the contract and by the failure to do the work in the manner agreed upon. There was po attempt to prove, damages for delay. The damages for failure tel complete, according to the standard fixed by the court, was the difference between the value of the property as it actually was when -¡the work was completéd and as it would have been if the wiork had been done according to said standard. But there is no e-vjidence on that head. The plaintiff called two real estate experts, who testified to the value of the property in May,. 1906, and to wihat its value would have been with the improvements, agreed upon, completed, and that there was no substantial change in values for a year thereafter. But that evidence is wholly insufficient to' support the verdict in i this case. For, upon this record, it- is impossible to say that the plaintiff sustained anything but nominal damages. The point was called to the attention of the court and counsel by the motion to dismiss, and is raised by the appeal from the order denying the motion to set aside the verdict. While technically the plaintiff may have been entitled to a verdict for nominal damages, if the jury found the other facts in his favor, a verdict for $5,600.31 was without any evidence to support it and should have been set aside.

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

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

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