#### BOYD v. DE LANCEY.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Vendor and Purchaser—Breach of Contract of Sale—Damages.

The damages to which a vendee is entitled for breach of the contract to convey land are limited to the difference between the contract Drice and the value of the land at the time of the breach.

Appeal from circuit court, New York county.

Action by Richard V. Boyd against Edward F. De Lancey. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

William L. Snyder, for appellant.

A. Britton Havens, for respondent.

PARKER, J.

The complaint alleged the making of an agreement on the 20th day of October, 1892, by which the defendant, in consideration of the sum of $1,500 then paid, gave to the plaintiff the option at any time between its date and the 31st day of December, 1892, of purchasing for the sum of $85,000 a certain tract of land, situated in the town of Mamaboneck, county of Westchester; a breach of the agreement by the defendant; and demanded damages in the sum of $11,500. The answer, among other things, denied the breach of the agreement by the defendant; and upon the trial the court submitted such question to the jury, who rendered a verdict in favor of the plaintiff in the sum of $2,998. Against the objection of the defendant that “the evidence is immaterial, irrelevant, and incompetent, also as too remote on the question of damages, and as speculative, and as not competent proof of the measure of damages,” the plaintiff was allowed to testify that his intent in purchasing the land was to lay it out in lots and retail the lots; that he told the defendant, before procuring the option, that it was his intention to spend about $50,000 in developing the property; how, since the breach of the agreement, he had figured out how many building sites were contained in the plot, and found it would cut up into 255 lots, of about 50 feet front, and from 100 to 150 feet in depth. The lots, he testified, would not all sell at the same price, but one-half would be worth about $1,000 apiece, and others $800 *246apiece, and lots next to the railroad about $300 apiece. And upon this basis he stated the valuation of the entire property to be $204,-000, exclusive of the house upon it, which he estimated at $2,000. Other evidence bearing upon the prospective value of the property, to be caused in part by the improvements which the plaintiff contemplated making, was admitted against defendant’s objection; but sufficient reference has been made to it to present the ground on which the appellant urges, and we think riehtly, that he is entitled to a reversal. The rule of damages applicable to this case is stated in Pumpelly v. Phelps 40 N. Y. 59, at page 66, as follows:

> “The general rule certainly is that where the vendor has the title, and for any reason refuses to convey it as required by his contract, he shall respond in law for the damages, in which he shall make good to the plaintiff what he has lost by his bargain not being lived up to. This gives the vendee the difference between the contract price and the value at the time of the breach, as profits or advantages which are the direct and immediate fruits of the contract.”

That the evidence was offered for the purpose of obtaining a greater amount of damages than the rule thus referred to would afford is apparent from the character of the testimony of the plaintiff,' received under objection. That the court so understood it, and so advised the jury, appears from the charge, in which the court, after referring briefly to the plan of the plaintiff in malting the purchase for the purpose of laying it out into residential lots, to accomplish which he had a syndicate behind him, said:

> “Ordinarily, on the breach of such an agreement, the amount which -a party would be entitled to recover would be the difference between the contract price and that which was the marketable value of the property. But there are cases in which, where it can be seen from the evidence damages were certain to follow from the breach of the agreement, other than the mere difference between the contract price and the market price, those may be taken into consideration by the jury, but those cases are rare.”

It cannot be said that the evidence basing value upon contemplated sales after the property should have been laid out in lots did not affect the verdict of the jury, for other witnesses acquainted with the value of real estate in that vicinity testified that the fair market value of the property at the time of the breach of the contract did not exceed the contract price of $85,000.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

VAN BBUNT, P. J., concurs. FOLLETT, J., concurs in result.