
    Peter M. Gordon and Helen Gordon, Appellants, v. George Wyness, Respondent.
    Second Department,
    October 1, 1915.
    Pleading — complaint — breach of agreement to surrender custody of child during minority—damages — injury to feelings — demand for excessive damage.
    A complaint which in substance alleges that the defendant, after the death of his wife, surrendered his new-born child to the plaintiffs with the express agreement that it should remain with them until it attained full age, but that before said period the defendant remarried and took the child away from the plaintiffs, states a cause of action to recover on a quantum meruit for services actually rendered in earing for the child.
    
      It seems, that in such action the plaintiffs cannot recover damages for injury to their feelings.
    A complaint should not be dismissed because the plaintiff demands a larger measure of damages than the law allows.
    Appeal by the plaintiffs, Peter M. Gordon and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 8th day of March, 1915, upon the dismissal of the complaint at the opening upon a trial before the court and a jury.
    
      Douglass C. Lawrence [Edgar P. Foster, Olin A. Foster and Charles H. Stoll with him on the brief], for the appellants.
    
      Harry L. Guggenheim, for the respondent.
   Carr, J.:

When this case was reached for trial, and after a jury had been obtained, the defendant moved to dismiss the complaint on the ground that it failed to state ¿'cause of action. The motion was granted and judgment was entered accordingly, from which the plaintiffs appeal.

The complaint is somewhat discursive, but what it states in effect is as follows: The defendant’s wife had given birth to a child and died shortly thereafter; by a mutual agreement between the plaintiffs and the defendant, plaintiffs took the child and cared for it for a period of four years; thereafter the defendant remarried and took the child away from the plaintiffs. The complaint alleges further that there was an express agreement between the plaintiffs and the defendant that the child should be allowed to remain with the plaintiffs until it attained full age. The complaint contains an allegation of damages to the plaintiffs in their feelings and also loss to them in the reasonable value of the maintenance of the child in the meantime. Doubtless, as to the claim for damages for injury to feelings, there may be no recovery. But is it possible that under these circumstances there may be no recovery on the question of quantum meruit for services actually rendered ? The defendant has had his child cared for for four years. According to the complaint, he agreed to leave the child with the plaintiffs until it attained its majority. The contract was plain. Of course, it was not such a contract as equity would enforce by specific performance, for the father had the right to take his child away and give it his parental bringing up according to his own judgment. But he could not farm out his child in the meantime and have it receive the care and attention of others without being liable for the reasonable value of such services, if he broke his agreement. So it seems to me.

So far as the question of precedents is concerned, this case seems to be one of first impression. The complaint should not have been dismissed, because the plaintiffs in their complaint claimed a larger measure of damages than the law should allow. Though somewhat crude, the complaint is sufficient to sustain a cause of action upon a quantum meruit.

I recommend, therefore, that the judgment dismissing the complaint be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Mills and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  