¶1The motion to dismiss the complaint was properly denied. The contract was assignable, and was duly assigned. On the assumption that there had been a breach of the contract before the assignment, Stephen B. Oonover had a right of action for the damages which he had sustained, and undeniably that right of action was assignable. The defendant was guilty of a breach of his contract when he sold the potatoes called for by the contract, and his avowal that he did not intend to deliver the potatoes under it was the best evidence of a breach of it. This evidence was uncontradicted at the time this motion was made, and must be assumed to be true. The avowal of the defendant that he could not and would not fulfill the contract on his part, rendered wholly useless any demand on the part of the plaintiff, or offer on his part to fulfill the contract. But such demand and offer were made in the paper shown and read to the defendant, under date of October 5. Upon the proof, the plaintiff was clearly entitled to recover the damages sustained for a breach of this contract.
¶2The jury fixed the amount of the damages at $500, and it was competent for the general term of the supreme *327court, if, in its judgment, such damages were excessive, to order a new trial, or, in its discretion, to affirm, in case the plaintiff should remit the amount adjudged excessive. The Code confers power, upon an appeal from a judgment or order, on thó appellate court, to reverse, affirm or modify the judgment or order appealed from. (§ 330.) .It has long been the settled practice of the court, oh a motion for a new trial, to refuse to set aside the verdict, if the parties would consent to deduct any amount deemed excessive. (3 Gra. & Wat. on New Trials, 1162, and cases there cited.)
¶3Such a proceeding was recognized and approved of by this court in Chouteau agt. Suydam (21 N. Y. R. 179).
¶4In that case, the general term of the supreme court of the city of Hew York affirmed a judgment in favor of the plaintiffs, conditionally, upon their consenting to certain modifications, reducing the amount of the judgment, which they did, and one of the defendants then appealed to this court. This court affirmed the judgment, with costs of the appeal to this court.
¶5No good reason is suggested why we should disturb the judgment in this action; and the judgment appealed from should, therefore, be affirmed, with costs.
¶6All the judges concurring.
¶7Judgment affirmed, with costs and ten per cent penalty.