Roome v. Jennings

23 N.Y.S. 666, 3 Misc. 413, 1893 N.Y. Misc. LEXIS 287

• Court: The Superior Court of the City of New York and Buffalo
• Decided: May 1, 1893
• Status: Published

Opinion

FREEDMAN, J.

The complaint does not state a cause of action for fraud or deceit, for fraud or deceit without damage is not actionable. The damages sought to be recovered áre shown to have resulted, not from the fraud or deceit by means of which the plaintiffs were induced to enter into the executory contract of sale, but from their own refusal to carry out the said contract and their rescission of it. They were justified in such refusal and rescission. It appears, however, that, if they had not so refused and rescinded, no damage would have been sustained, for the fall in the market price had then already taken place, and the defendants were ready and willing, and presumably able, to pay the contract price. The plaintiffs, by thus making an election which they had an undoubted right to make, brought about their own loss. The learned judge below was therefore correct in holding that, upon the facts set out in the complaint, the plaintiffs have but a technical cause of action, which is for the breach of the duty that the defendants as brokers Owed to the plaintiffs, and that in this action, as it is set forth, the plaintiffs are entitled to nominal damages only. The demurrer to the complaint having been overruled, and the damages on the facts stated' in the complaint being, as matter of law, nominal, the court could proceed at once to award the damages; and the defendants’ right to costs in such a case being statutory, under section 3229 of the Code,¹ the judgment was properly entered under sections 1021 and 1222 of the Code.² If the plaintiffs can show a different state of facts, and desire so to do, their remedy is by motion for leave to amend their complaint.

The judgment should be affirmed, with costs.

1 Code Civil Proc. §§ 3228, 3229, provide as follows: “Sec. 3228. The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions: * * * gubd. 4. An action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars, or more. Sec. 3229. The defendant is entitled to costs, of course, upon the rendering of a final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed.”

2 Code Civil Proc. § 1021, reads as follows: “The decision of the court, or the report of a referee, upon the trial of a demurrer, must direct the final or interlocutory judgment to be entered thereupon. Where it directs an interlocutory judgment, with leave to the party in fault to plead anew or amend, or permitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed.” Section 1222 reads as follows: “Pinal judgment upon an issue of law, where no issue of fact remains to be tried, and final judgment has not been directed as prescribed in section ten hundred and twenty-one of this act, may be entered upon application- to the court or by the clerk.”