John A. Bellizzi v. Huntley Estates

[3 N.Y.2d 112 Page 114] The defendant-respondent, a real estate developer, on or about August 19, 1950, contracted to sell to the plaintiff-appellant
a lot designated as No. 235 in its development and to build a house thereon in accordance with its demonstration model known
as "The 1951 Kent" which, among other features, had an attached garage with an access driveway substantially at street level.
When the construction work was commenced, the defendant encountered rock close to the surface and, instead of excavating same,
as might have been done without too much trouble at the time, it placed the house thereon, with the result that from the entrance
of the garage to the street, a distance of 43 feet, there was a difference in elevation of 9 feet and 8 inches. This amounted
to a 22 1/2% grade, which is so steep that the driveway cannot be used safely and conveniently. As a matter of fact, the evidence
shows that a grade of 12% is considered the permissive maximum. While the plans are silent as to the grade of the driveway,
the defendant does not now claim that the grade of the existing driveway is reasonable or that plaintiff has no cause for
complaint. It defends against plaintiff's claim for damages on the sole ground that the trial court erred when it excluded
evidence offered by it as to the value of the property and should not have refused to charge that the measure of damages "is
the difference between the value of the building as constructed and its value had it been constructed conformably to the
contract or the cost of repairs, whichever is the lesser." Instead, the trial court charged in substance that the measure
of damage is "the fair [3 N.Y.2d 112 Page 115]