Hawk Sales Co. v. Guidarelli ( 1972 )

Judgment and order unanimously modified to sustain the complaint and declare plaintiff entitled to retain the $30 down payment as liquidated damages for defendant’s defaults, and, as so modified, affirmed, without costs. Memorandum: Defendant repudiated his contract, and hence plaintiff was entitled to judgment on its complaint for damages for the breach. Since the contract fixed such damages at $30, which defendant had paid on signing the contract, plaintiff was entitled to judgment for the retention thereof. Although defendant repudiated his contract, the evidence shows that plaintiff suffered no real damage, because it resold the subject of the sale for an amount in excess of its market value. Thus, plaintiff was obligated under the statute in effect at that time (Personal Property Law, § 145-a, subd. 1) to return to defendant the value of any other consideration it had received. The evidence shows that the trade-in accepted by plaintiff was worth $2,000 at the time of the breach. Since the court awarded defendant on his counterclaim the sum of $1,090 (from which defendant does not cross appeal) plaintiff has no grievance with respect thereto. (Appeal from order of Onondaga County Court affirming judgment of Syracuse City Court in action for damages for breach of contract.) Present — Del Vecchio, J. P., Marsh, Witmer, Moule and Henry, JJ.