Columbia Wax Products Co. v. Klahn , 1967 N.Y. App. Div. LEXIS 2689 ( 1967 )

In an action to recover damages for injury to property, defendant Klahn and the other defendants (hereinafter called Gordon) separately appeal as follows from an amended and corrected judgment of the Supreme Court, Queens County, entered April 12, 1967, in favor of plaintiffs against all the defendants and in favor of the Gordon defendants against defendant Klahn on the cross claim of the Gordon defendants: Defendant Klahn appeals from the entire judgment and the Gordon defendants appeal from so much of the judgment as is in favor of plaintiffs against them. Judgment reversed, on the law and the facts, without costs, and new trial granted on the limited issue of damages. In our opinion, the proof allegedly sustaining the amount of the awards was highly unsatisfactory (cf. Deutseh v. National Props., 19 A D 2d 823; 1 New York Law of Damages, § 435; Steitz v. Gifford, 280 N. Y. 15, 20). But, aside from the unsatisfactory proof as to damages, there was ample proof which would have justified a judgment in favor of plaintiffs against all the defendants and a judgment on the cross claim in favor of the Gordon defendants. In the circumstances herein, a new trial on the limited issue of damages is appropriate (cf. Deutseh v. National Props., supra). Beldock, P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.