
    Louis Curtis, App’lt, v. Charles R. Ritzman, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed February 8, 1894.)
    
    Appeal—Proper relief.
    The general term of the same court may, on appeal make the order which ought to have been made below.
    Appeal from interlocutory judgment entered on order overruling demurrer.
    
      J. George Flammer, for app’lt; M F. Bullard, for resp’t.
   Ehrlich, C. J.

The gravance of the complaint is, that the

defendant let the west side of a store to the plaintiff, for sale of furniture, carpets, etc., and agreed that the store on the east side, ‘should not be rented, or used for the sale of the same kind of goods.” As breach, the complaint alleges, that the defendant subsequently rented the east store to one Harrington “without restricting” him as agreed, and that Harrington used the store to sell goods of the same character, as sold by the plaintiff, whereby “the plaintiff was unable to sell his goods as he had theretofore done,’ to his damage $2,000. There is no pretence, that the defendant used the place for the rival business or knowingly let it therefor, but merely, that he failed to “restrict” Harrington, who injured him, etc. The damages recoverable for such a breach would be nominal merely, in the absence of a claim for special damages, and there is no such claim. Sedgwick on Dam. 6th. Ed. p. 731 note. Parsons v. Sutton, 66 N. Y. 92. If the plaintiff has any action, it is a technical one merely, and if the court below, had sustained the demurrer, a reversal would not have been granted in such a case, to enable the plaintiff to recover nominal damages only. Patten v. Hamilton, 12 Ind. 256 ; Hudspeth v. Allen, 26 Id. 165. The general term of the same court may on appeal, make the order which ought to have been made below. The court at special term overruled the demurrer and permitted the defendant to answer over, on payment of $215 costs. But, why prolong a litigation and compel the defendant to pay $16 costs in a six cent case, where that is the limit of the recovery. We think the interlocutory judgment and order, ought to be reversed without costs,—except as hereinafter mentioned,— and the demurrer sustained with liberty to the plaintiff to amend his complaint by pleading special damages or any other material allegation, on paying the disbursements incurred on this appeal.

Fitzsimons, J., concurs.  