
    Louis Curtis, Respondent, v. Charles L. Ritzman, Appellant.
    (City Court of New York—General Term,
    February, 1894.)
    The complaint in an action alleged that defendant let the west side of a store to plaintiff for a certain business and agreed that the other side should not be rented or used for the sale of the same kind of goods; that he subsequently rented the other side without restriction to one who used it for the sale of the same kind of goods, to plaintiff’s damage; but no special damages were averred. A demurrer to the complaint was overruled, with leave to answer on payment of fifteen dollars costs. Meld, error; that the recovery in such a case could be for nominal damages only, and that the demurrer should have been sustained, with leave to plaintiff to amend by pleading special damages or other material allegations.
    Appeal from interlocutory judgment entered on order overruling demurrer.
    
      
      J, George Flammer, for appellant.
    
      F, F. Bullard, for respondent.
   Ehrlich, Ch. J.

The gravamen 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 pretense 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. Sedg. on Dam. (6th ed.) 131, 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. Patton 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 fifteen dollars costs.

But why prolong a litigation and compel the defendant to' pay fifteen dollars 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 tlie 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.

Order reversed and demurrer sustained, with leave to plaintiff to amend complaint on payment of the disbursements of the appeal.  