Dunn v. New York Herald Co.

119 A.D. 477, 104 N.Y.S. 94, 1907 N.Y. App. Div. LEXIS 3968

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1907
• Status: Published

Opinion

Gaynor, J.:

• 'The demurrer that a cause of action for contract and- another for tort have been improperly united, and that the complaint does not state facts sufficient, was overruled below.. The complaint' is that the plaintiff had placed in several newspaper establishments, including that of the defendant, certain pictures for publication on a stated' future day, under an agreement that he was • to be paid therefor on publication ; that the defendant violated this agreement and published them before the arrival of the day, and thus made the picture stale with all the other newspapers, whereby the plaintiff lost the benefit of 1ns contract with them. It is then pleaded in two other paragraphs that by reason of such premature publication the plaintiff’s standing with all the newspapers and publishers ■ of pictures was injured, for which he asks damages in addition to the damages caused immediately by tlie said breach of contract. It is manifest that the complaint does not state two causes of action, but only one. The extra damages claimed may not be provable or , recoverable at all, but the allegation of them does not amount-to a separate cause of action. The pleader had a notion, that he was alleging special damage. There is a good cause of action for breach of contract alleged ; the other allegations go to the question of damage. The judgment should- be affirmed. . -

Jenks, Hookes, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.-