Nicoll v. Lloyd

Both parties appeal from the judgment.

A former judgment in favor of the plaintiff was reversed because the action was brought for work, labor and services performed, whereas it should have been for damages for breach of contract, and the order of reversal awarded to the defendant, costs to abide the event. Nicoll v. Lloyd, 26 Misc. Rep. 799. Upon the second trial the justice, against the defendant’s objection and exception, permitted the complaint to be amended so as to demand damages for breach of contract, no terms being imposed as a condition of such amendment. This was error. The defendant should at least have been allowed the costs of the former appeal. The plaintiff appeals upon the ground that the amount of damages awarded by the justice was manifestly inadequate under the *776evidence. In this he is clearly right, assuming that the plaintiff is entitled to damages at all. In fact it would seem that the amount for which judgment was awarded must have been inserted by an inadvertence.

‘Upon both appeals the judgment must be reversed and a new trial granted, but without costs to either party.

Present: Tbuax, P. J., Scott and Dug-bo, JJ.

Judgment reversed and new trial granted, without costs.