Fahn v. Dann

New York Supreme Court

Fahn v. Dann

207 Misc. 834, 140 N.Y.S.2d 787, 1955 N.Y. Misc. LEXIS 2432

CourtNew York Supreme Court

DecidedApril 29, 1955

StatusPublished

Cited by1 cases

This text of 207 Misc. 834 (Fahn v. Dann) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fahn v. Dann, 207 Misc. 834, 140 N.Y.S.2d 787, 1955 N.Y. Misc. LEXIS 2432 (N.Y. Super. Ct. 1955).

Pincite

Opinion

Del Veochio, J.

This is a motion under rule 106 of the Buies of Civil Practice for an order dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

Plaintiffs sue for breach of contract and in paragraph 5 of the complaint allege: 1 ‘ That the said contract further provided that in the event that the contract were cancelled by the defendants herein, they agreed to pay to the Home Fire Alarm Company, a sum equal to fifty percent of the contract as fixed liquidated and ascertained damages without proof of loss or damage.” There is no allegation of any actual loss sustained by the plaintiffs.

Plaintiffs should not be permitted to recover a substantial sum if nominal damages only resulted from the breach of contract.

In Seidlitz v. Auerbach (230 N. Y. 167, 173-174) the court said: “ Generally whenever the damages flowing from a breach of a contract can be easily established or where the damages fixed are plainly disproportionate to the injury the stipulated sum will be treated as a penalty.”

In Dunn v. Morgenthau (73 App. Div 147, 148, affd. 175 N. Y. 518) the court said: “ If no damage is sustained, the provision of a contract for liquidated damages will be regarded as a penalty. That damage or injury must result from the breach is a necessary factor in the problem.” (See, also, Weinstein & Sons v. City of New York, 264 App. Div. 398, affd. 289 N. Y. 741.)

In their brief the plaintiffs state they can prove the actual loss or damage sustained. In the cases they cite, namely, Knoblauch v. Little Falls Dairy Co. (241 App. Div. 910) and [836]*836Downtown Harvard Lunch Club v. Racso, Inc. (201 Misc. 1087), the courts pointed out that the amount of damage plaintiff would suffer as a result of a breach by defendant was not in any way certain, was difficult to prove and in fact incapable of being ascertained except by conjecture. Under such cirumstances, which do not - exist in the present case, a stipulated damage is enforcible as liquidated damages and not as a penalty.

The motion to dismiss is granted with leave to amend the complaint within ten days from the service of a copy of the order with notice of entry.

Order accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

Del Veochio, J.

This is a motion under rule 106 of the Buies of Civil Practice for an order dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

Plaintiffs sue for breach of contract and in paragraph 5 of the complaint allege: 1 ‘ That the said contract further provided that in the event that the contract were cancelled by the defendants herein, they agreed to pay to the Home Fire Alarm Company, a sum equal to fifty percent of the contract as fixed liquidated and ascertained damages without proof of loss or damage.” There is no allegation of any actual loss sustained by the plaintiffs.

Plaintiffs should not be permitted to recover a substantial sum if nominal damages only resulted from the breach of contract.

In Seidlitz v. Auerbach (230 N. Y. 167, 173-174) the court said: “ Generally whenever the damages flowing from a breach of a contract can be easily established or where the damages fixed are plainly disproportionate to the injury the stipulated sum will be treated as a penalty.”

In Dunn v. Morgenthau (73 App. Div 147, 148, affd. 175 N. Y. 518) the court said: “ If no damage is sustained, the provision of a contract for liquidated damages will be regarded as a penalty. That damage or injury must result from the breach is a necessary factor in the problem.” (See, also, Weinstein & Sons v. City of New York, 264 App. Div. 398, affd. 289 N. Y. 741.)

In their brief the plaintiffs state they can prove the actual loss or damage sustained. In the cases they cite, namely, Knoblauch v. Little Falls Dairy Co. (241 App. Div. 910) and [836]*836Downtown Harvard Lunch Club v. Racso, Inc. (201 Misc. 1087), the courts pointed out that the amount of damage plaintiff would suffer as a result of a breach by defendant was not in any way certain, was difficult to prove and in fact incapable of being ascertained except by conjecture. Under such cirumstances, which do not - exist in the present case, a stipulated damage is enforcible as liquidated damages and not as a penalty.

The motion to dismiss is granted with leave to amend the complaint within ten days from the service of a copy of the order with notice of entry.

Order accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

207 Misc. 834, 140 N.Y.S.2d 787, 1955 N.Y. Misc. LEXIS 2432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fahn-v-dann-nysupct-1955.

Opinion

Related

Cite This Page — Counsel Stack