Howes v. Peckham Road Corp. ( 1964 )

Herlihy, J.

Appeal from a judgment awarding damages to the plaintiff. The facts are set forth in our prior decision. (See 14 A D 2d 940.) The theory of the action was that following the termination of a rental contract, the defendant failed to return the rented crusher within a reasonable time. From the testimony, the trial court properly found that the crusher had not been returned within a reasonable time and that the rental value of the machinery was $100 per day. The retention was unauthorized, but by reason of seasonal and other factors and of plaintiff’s obligation to mitigate his damage, the trial court properly limited damage to that incurred in but one month within the period of detention. Judgment modified, on the law and the facts, so as to award interest from April 28, 1960 only, and as so modified, affirmed, without costs. Gibson, P. J., Reynolds, Aulisi and Hamm, JJ., concur.