Colonna v. State

Per Curiam.

As to the claims for the years 1921-1925, inclusive, We are of the opinion that dismissal was error. The failure of claimant to make a reasonable effort to minimize damages does not,-under the circumstances here, bar him entirely from recovery. It merely prevents the recovery of such damages as might have been avoided by reasonable effort on his part. (Norske Ameriekalinje v. Sun P. & P. Assn., 226 N. Y. 1, 7.)

The lease to Colonna & Co. did not expire until September 2, 1924. Down to that time claimant’s damage, if any, consists merely of his loss of percentage on a sum equal to the difference between the market value of all stone which would have been produced under normal conditions and the market value of all stone which would have been produced had the quarry been worked with all reasonable effort to minimize the damage. Thereafter claimant’s damage was as owner and operator measured by the loss of the usable value less so much thereof as would have been avoided by reasonable effort to minimize.

As to the claim for the year 1926, we think the evidence generally, and particularly the testimony of the witness Fancher, justifies the finding made.

The judgment as to claims Nos. 17117, 17337, 17661, 17826 and 18146 should be reversed on the law and a new trial granted; otherwise affirmed, without costs. Conclusions of law numbered IV and VI are disapproved and reversed.

All concur, except Thompson, J., who dissents and votes for affirmance. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.

Judgment as to claims Nos. 17117, 17337, 17661, 17826 and 18146 reversed on the law and a new trial granted as to such claims, with costs to appellant to abide event, and otherwise the judgment is affirmed, without costs. Conclusions of law Nos. IV and VI disapproved.