N. E. Blankman & Co. v. Oakdale Sewerage Disposal Corp. ( 1974 )

In an action inter alia to recover damages for breach of contract, in which counterclaims were asserted, (1) plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered May 23, 1973 after a nonjury trial, except so much thereof as dismissed the counterclaim of defendant C. W. Lauman & Co., Inc. (the judgment otherwise dismissed the complaint, awarded money damages to defendants Oakdale Sewerage Disposal Corp. and Leon J. and Helen Grappell against plaintiff, directed plaintiff to execute instruments of easement and granted said defendants Grappell foreclosure of a mortgage), and (2) said defendants Oakdale and Grappell cross-appeal from so much of the judgment as omits to award them an additional $27,745 in damages. Judgment modified, on the law and the facts, by adding thereto a provision granting defendant Oakdale Sewerage Disposal Corp. an additional recovery against plaintiff of $27,745, with interest from May 1, 1968. As so modified, judgment affirmed insofar as appealed from, with one bill of costs jointly to defendants appearing separately and filing separate briefs against plaintiff. By agreement with defendants Grappell, plaintiff had the right to change the location of .an underground easement it was to provide for a forced main sewer line through the real property in suit. Plaintiff agreed that if it required such change it would pay any extra charges necessarily incurred by Oakdale. The undisputed evidence shows that plaintiff required the change and that the necessary and reasonable cost of relocating the ease-meat was $27,745. In our opinion Oakdale should have been granted judgment against plaintiff for this additional amount. All of the other issues were properly disposed of by Mr. Justice Velsor in his well-considered opinion. Shapiro, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.