(dissenting in part). I concur in the result reached by the majority of the court with the exception that I would not grant judgment in favor of Consolidated Telegraph and Electrical Subway Co. on its cross claim against Fitzgerald Paving Co., Inc. Fitzgerald Paving Co., Inc. was not guilty of negligence of any kind. At the time of the accident it had not yet commenced work, nor had it taken control of the premises. Assuming that the facts support the conclusion that there was no waiver by Consolidated Telegraph, at most we have a breach of contract on the part of Fitzgerald for failure to pave at the time required by the contract. Any recovery against Fitzgerald may only be had for such breach. Ordinarily, in a contract such as this, damages would be the difference between the contract price and the market value of the work. However, consequential damages may be awarded where those consequences were within the contemplation of the parties and could not be avoided by the party aggrieved. Thus, in the case of a contract of sale of merchandise not obtainable on the market at the time of the breach, if the parties knew that the failure to deliver would result in a loss to the purchaser because he would then be unable to fulfill contracts made in contemplation of receiving the goods, he would be entitled to recover the loss of profits as consequential damages. However, if the merchandise could have been purchased on the open market in time for the purchaser to meet his commitments he could not claim consequential damages. Such damages would be the result, not merely of the breach, but of the purchaser’s failure to obtain the goods on the market. Moreover it becomes the duty of one aggrieved as the result of a breach of' contract to make reasonable attempts to mitigate damages.
And so in this case it may not be said that the injuries sustained by the plaintiff were the proximate consequences of the failure of Fitzgerald to repave on time. Rather, the accident was a direct consequence of the failure of Consolidated Telegraph to remedy the condition then existing, or to take other means to safeguard pedestrians. It may well be that if Consolidated Telegraph had not been in control of the premises at the time of the accident, but depended on performance by Fitzgerald it could then be said that the accident was a consequence of Fitzgerald’s breach of contract. The evidence, however, clearly shows that up to the time of the accident Consolidated Telegraph or its agent Slattery was in full control of the premises to the exclusion of Fitzgerald, which had not yet arrived to do its work. Having been itself in control, or in control through its agent Slattery, for whose acts it is chargeable, Consolidated Telegraph could not stand idly by and allow a dangerous condition to exist merely because it had a contract to repave. Even *281if there was a breach of contract on the part of Fitzgerald, Consolidated Telegraph owed Fitzgerald a duty to take reasonable steps to prevent the aggravation of damages if it was within its power to do so. Here, not only was it within its power to do so, but that was its obligation to the public as well as to Fitzgerald.
Quite apart from its legal obligation it would appear to be against public policy to allow Consolidated Telegraph to recover in a situation as is here presented. It is in the interest of the public that dangerous conditions be immediately remedied. To sustain Consolidated Telegraph’s cross complaint against Fitzgerald would in effect be condoning Consolidated Telegraph’s conduct in standing by and permitting the dangerous condition to continue with its potential of injury to the public. Such disregard for the public interest should be discouraged. It certainly ought not be encouraged as it would be by the decision to hold in Fitzgerald.
Accordingly, I dissent in part and vote to dismiss the cross complaint of Consolidated Telegraph and Electrical Subway Co., against Fitzgerald Paving Co., Inc.
Bbeitel, J. P., Valente and Stevens, JJ., concur with McNally, J.; Babin, J., dissents in part, in opinion.
Besettled judgment appealed from modified as follows: (a) that part of the judgment in favor of the plaintiffs and against defendants-appellants the City of New York, Consolidated Telegraph and Electrical Subway Co. and Slattery Bock Corporation is affirmed; (b) the judgment as to the cross complaint of the defendant-appellant the City of New York is reversed, on the law, the dismissal vacated and judgment directed for the city against defendants-respondents Consolidated Telegraph and Electrical Subway Co. and Slattery Bock Corporation; (c) the judgment as to the cross complaint of the defendant-appellant Consolidated Telegraph and Electrical Subway Co. against defendant-respondent Slattery Bock Corporation is reversed, on the law and on the facts, the dismissal vacated and judgment directed against the said defendant-respondent; and (d) that part of the judgment in favor of the defendant-respondent Consolidated Telegraph and Electrical Subway Co. and against defendant-appellant W. J. Fitzgerald Paving Co., Inc. is affirmed, with costs to all prevailing appellants and respondents.
Settle order.