A. Vuccino & Co. v. Brown

46 Misc. 407, 92 N.Y.S. 319

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1905
• Status: Published

Opinions

Scott, J.

In my opinion the complaint was insufficient and the demurrer should have been sustained. To recover for a breach of contract there must be pleaded: First, the con- • tract. , Second, the breach, and third, that the plaintiff suffered damage. The last allegation is as important as either . of the others, because if there has been no damage there can be no cause of action. The plaintiff after alleging the contract and its breach undertook to allege damage, and in this attempt- claimed only to have been damaged in a certain sum because owing to the nondelivery of the labels “ he was not able to keep the contracts for the delivery of goods on which said label was to have been contained and has lost trade and custom by reason thereof to the plaintiff’s damage in the sum of $360.” There is no general allegation of damage, or any allegation of other damage except the loss of trade and custom. It seems to be obvious, that without the allegation of special circumstances, the damages claimed are too remote and not the ordinary and natural measure of the damages, or such as would be the damages which it could be fairly supposed the parties expected, when they made the contract, would flow from the breach thereof. Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209. Having limited itself to the special damage pleaded the plaintiff could not prove any other, and Having omitted to plead damage generally there would be no room for the award of even nominal damages, if indeed an action like the present can be maintained merely for nominal damages.

The interlocutory judgment should be reversed, with costs to the appellant in this court and the court below, and the demurrer sustained with leave to plaintiff to amend within six days, upon payment-of costs.

Giegerich, J., concurs.