Trans-State Hay & Feed Corp. v. Faberge, Inc.

42 A.D.2d 535, 344 N.Y.S.2d 730, 1973 N.Y. App. Div. LEXIS 4190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1973
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on October 6,1971, denying defendant’s motion to dismiss the second and third causes of action, unanimously reversed, on the law, the motion granted, and the second and third causes of action dismissed and severed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The allegations contained in the second cause of action failed to establish a claim independent of the first cause of action sounding in breach of contract. Plaintiff was damaged, if at all, solely by defendants’ failure to deliver the subject merchandise. There ' is no allegation in the second cause of action indicating that plaintiff was injured as a result of the claimed actions constituting the fraud or interference with the third-party contract, and accordingly, the cause of action is insufficient as a matter of law (cf. Latzko v. Spector, 28 A D 2d 1111, affd. 22 N Y 2d 710). In effect, the allegations in the second cause of action merely establish the possible motivation for the breach of contract. Such, however, is irrelevant on the issue of damages; since recovery herein is limited to the actual damages suffered. (See 13 N. Y. Jur., Damages § 44.) plaintiff, of course, may possibly recover under the. first cause of action, if properly proven, and shown to be within the contemplation of the parties, the consequential damages incurred by the loss of any benefits in connection with the third-party contract. Since all that is validly pleaded is a claim for breach of contract, involving private rights, the third cause of action seeking punitive damages should also be dismissed. (Van Valkenburgh, Nooger <& Neville v. Hayden Pub. Go., 33 A. D 2d 766, affd. 30 N Y 2d 34.) Concur— Stevens, P. J., Markewich, Nunez, Lane and Tilzer, JJ.