Prior to May 15, 1902, the plaintiff and defendants had some negotiations looking to the installation of a hot water heating-apparatus in plaintiff’s residence in the city of Rochester, N. T. One of the defendants inspected the house, measured the rooms to be heated, and as a result, on said fifteenth day of May, submitted to the plaintiff a proposal, with specifications attached, for installing the plant. Such offer, which was accepted by the plaintiff, was in effect that the defendants would properly install a heating system which would heat the rooms mentioned in the specifications to a temperature of seventy degrees in zero weather, for the sum of $250. The defendants claimed to have completed the work in accordance with the terms of the contract early in September, 1902, and the plaintiff paid the full contract price together with $10 additional for “ extras.” At the time such payment was made the condition of the weather was such as to render it impossible to make a practical test of the heating qualities of the plant or to know whether or not in zero weather it was capable of heating the house to seventy degrees as warranted to do.
During the latter part of November, however, the plaintiff attempted to heat his house and found that the _ plant could not be made to accomplish the results guaranteed, and so notified the defendants. They made several attempts to adjust the apparatus; sought to improve the draft and did various other things in the endeavor to comply with the terms of the contract. The plaintiff claimed that such efforts were wholly unavailing and he thereupon notified the defendants, in effect, that the plant was not as required by the contract, that it was impossible to heat the house in such manner as the defendants expressly warranted could be done, and asked them, in effect, to- remove the plant installed by them, and notified them that if they did not it would be removed by the plaintiff and kept or stored subject to their order. The defendants made no further efforts to remedy the alleged defects, but claimed that they had fully performed their contract.
Under the contract in question the plaintiff, assuming that the *243heating apparatus was not capable of doing the work which the defendants warranted it would do, had either one of two remedies; he might have required the defendants to remove the same, or if they failed to do so, remove it himself and recover the purchase price, or he might demand and recover the damages sustained by reason of the breach of contract. It is apparent that when the plaintiff brought his suit he had in mind to recover upon the cause of action first suggested, but it equally clearly appears that upon the trial such form of relief was abandoned, and that the plaintiff sought to recover under the second form of action, to wit, the damages resulting from the alleged breach of contract. The trial court determined that the defendants failed to keep and perform their part of the contract and such determination is amply justified by the evidence. Upon no other theory could any judgment have been rendered in favor of the plaintiff. If a judgment had been awarded upon the cause of action first mentioned, it would have been for the full amount paid by the plaintiff, and the defendants would have been at liberty to take away and remove from plaintiff’s premises any material or part of the plant which they had furnished.
Upon the second form of action suggested and under which the case was tried, the. measure of damages is the difference between the actual value of the plant as it was and its value if it had corresponded to the warranty. (Bates v. Fish Brothers’ Wagon Co., 50 App. Div. 38; affd., 169 N. Y. 587.)
In the case at bar the evidence offered on the part of the plaintiff tended to show that the fault or defect in the apparatus resulted because a boiler of too small capacity was furnished ; that to substitute a new boiler and such as was necessary to properly do the work required by the contract would cost from $130 to $145, and damages were awarded by the trial court for the smaller of said sums. In the estimate of such damages by the witnesses and in awarding the same no account was taken of the value of the boiler which the defendants had furnished, notwithstanding it was a new boiler and of substantial value. The result of the trial in the Municipal Court was that the plaintiff was awarded a sum of money as damages, which would enable him to connect with the plant a new boiler of such capacity as would make the heating apparatus in *244all respects'as guaranteed and, at the same time, enable him to retain possession of and acquire title to the Iboiler which the defendants had furnished. Such method of arriving at the damages sustained by the plaintiff, we think, constituted error, and such- as to require a reversal of the judgment by the-learned County Court. The judgment of the County Court should, therefore, be modified so as to provide that the judgment of the Municipal Court be reversed, and a new trial ordered in said court, without costs of this appeal to either party.
All concurred.
Judgment modified by directing a new trial in Municipal Court, and as thus modified affirmed, without costs of this appeal to either party.