
    Samuel Borchardt, Respondent, v. Lord Electric Co., Appellant.
    (Supreme Court,Appellate Term, First Department,
    February, 1916.)
    Contracts — to examine, repair and maintain elevator — repudiation of contract — measure of damages.
    Where a five-year contract to examine, repair and maintain an elevator o-wned by plaintiff is repudiated two years after it was made, the amount the owner was required to pay for repairs and maintenance of the elevator in excess of the contract price during the five years is the measure of his damage.
    Where it appears that such repairs were necessitated by the negligent maintenance of the elevator by defendant during the two years in which its contract was in existence, the necessary expense and fair value thereof is the measure of damages.
    Appeal from a judgment of the City Court of the city of New York against the defendant, rendered by the trial justice without a jury.
    Alpheus H. Favour (William Wadsworth, of counsel), for appellant.
    Henry S. Mansfield, for respondent.
   Per Curiam.

The plaintiff herein has recovered a judgment in the sum of $80?.46, with costs and interest, for damages caused by the breach of contract of the defendant. The-issues were submitted to the court without a jury. The case presents primarily a question of law as to'the construction of the contract and we think that the trial justice has correctly determined that question in favor of the plaintiff. It seems to us, however, that the damages allowed are excessive. The defendant agreed ‘' to examine, repair and maintain ’ ’ for five years an elevator owned by the plaintiff for the sum of $400 per annum. It repudiated its contract two years after it was made. The plaintiff thereafter was obliged to enter into a contract with another company for the three years, at the rate of $515 per annum, and the trial justice correctly included in the damages awarded the sum of $345 for this excess payment. The plaintiff also showed that before making the new contract it was obliged to have certain repairs made upon the elevator and we think it sufficiently appears that these repairs were necessitated by the negligent maintenance of the elevator by the defendant during the two years in which its contract was in existence. The trial justice has found that the expense and the fair value of these repairs was the sum of $462.46. In order to prove these damages the plaintiff showed that the American Elevator Company had given it an estimate of the cost of this work for the sum of $570. It is, however, not disputed that the plaintiff did not accept the estimate and there is absolutely no evidence that the estimate was fair and reasonable. The defendant thereafter proved that it had received an estimate from the Otis Elevator Company to make these repairs for the sum of $462.46 and that the Otis Elevator Company did some work in making these repairs and was paid for such work the sum of $293.46. The assistant superintendent of repairs t.esti-. fied that the work covered by the bills for this amount had been done under his direction and that the sum of $293.46 is the reasonable value for that work. There is absolutely no proof that any work not covered by these bills was performed or was necessary. The mere fact that previously the Otis Elevator Company had given an estimate for $462.46 is no evidence that the plaintiff accepted that estimate, that that price was reasonable or that the work performed by the company as shown by the bill was not the work 'covered by the estimate. It follows that the judgment should be reduced in the sum of $169 with interest from October 17,1914, and affirmed, as modified, without costs on this appeal.

Present: Lehman, Weeks and Delehanty, JJ.

Judgment reduced and affirmed, as modified, without costs of this appeal.  