
    LEVINE et al. v. MARKOWITZ.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Contracts—Action for Breach—Pleading.
    Plaintiffs 'alleged and proved that they made a contract with defendant to perform work and furnish materials for the alteration of a building at an agreed, price, that defendant canceled this contract, and that the difference between the cost of the work and materials, under the plans and specifications, and the contract price, was a certain sum, which was the amount of their damage. Held, that it was error to dismiss the complaint on the ground that no cause of action had been made out against defendant.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by David Levine and Louis Seletzky against Morris Markowitz. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.
    Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.
    Samuel W. Levine, for appellants.
    Emanuel I. Silberstein, for respondent.
   GILDERSLEEVE, J.

The case came on for trial before the court and a jury. The plaintiffs showed that on March 15, 1906, defendant made a contract with them to perform certain work and furnish certain materials in the alteration of a building at the agreed price of $3,150; that said work was to begin on April 1, 1906, unless a tenant in the building had not then moved out, in which case it was to begin on the 2d or 3d day of April; that on March 16, 1906, plaintiffs gave a contract to Kazlowitsky & Lubetsky to supply the iron work and material to be used in said building; that several days thereafter, but before April 1, 1906, defendant canceled'his contract with plaintiffs; ,and that the cost of the work and materials under the plans and specifications, had they been allowed to complete their contract, would have been $2,750, so that the difference between the contract price ■ (i. e., $3,150) and the amount which it would have cost him to perform the contract (i. e., $2,750) was $400, which was the amount of their damage. Devlin v. Mayor, etc., 63 N. Y. 8. At the close of plaintiffs’ case the court dismissed the complaint, on the ground, apparently, that no cause of action had been made out against defendant. We think this was error.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.  