Ziskin v. Greenberg

Plaintiff in an action for the reformation of a contract, for an accounting, and for other relief, appeals from a judgment dismissing his complaint on the merits, after a trial before the court without a jury. Judgment unanimously affirmed, without costs as to the first and second causes of action only, but reversed on the law and facts as to the third cause of action and a new trial granted as to that cause, with costs to the appellant to abide the event. In our opinion the plaintiff failed to present proofs establishing either of the first two causes of action alleged. In the interest of justice, however, there should be a new trial as to the third cause of action, which was brought to recover twenty-five per cent of the profit to be realized upon the sale of the building as part of plaintiff’s agreed compensation under the pleaded contract in writing by which he was employed by the defendant ASG Realty Corp. to supervise construction, implicit in which contract was a provision that the building should be sold by that defendant within a reasonable time after it could be sold. (Simon v. Etgen, 213 N. Y. 589, 595, 596.) The undisputed proofs established the plaintiff’s legal right to recover damages upon the third cause, subject only to his furnishing *826proof of facts leading to the inference that he suffered substantial damage. Upon the new trial thus ordered in the interest of justice, proof may be taken inter alia (1) as to what would have been twenty-five per cent of the profit, if any, which could have been made on the sale of the building within a reasonable time after it could be sold, and (2) as to its fair and reasonable market value within such reasonable time as found, in order to determine the amount of the judgment, if any, to be entered in favor of the plaintiff on the third cause of action. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.