
    A. Vuccino & Co., Respondent, v. Charles E. Brown, Appellant.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Contract — Action for breach — Pleading damage — Demurrer.
    Where in a complaint for breach of contract to deliver certain labels the only allegation of damage is that owing to their nondelivery plaintiff “was not able to keep the contracts for the delivery of goods on which said label was to have been contained and has lost trade and custom by reason thereof”, the complaint is demurrable for failure to state facts sufficient to constitute a cause of action.
    Appeal by the defendant from an interlocutory judgment of the City Court of the city of New York, overruling a demurrer interposed by the defendant to the amended complaint on the ground that on its face it fails to state facts sufficient to constitute a cause of action.
    Walter Large, for appellant.
    Maxwell C. Katz (Otto C. Sommerich, of counsel), for respondent.
   Scott, J.

In my opinion the complaint was insufficient and the demurrer should have been sustained. To recover for a breach of contract there must be pleaded: First, the con- • tract. , Second, the breach, and third, that the plaintiff suffered damage. The last allegation is as important as either . of the others, because if there has been no damage there can be no cause of action. The plaintiff after alleging the contract and its breach undertook to allege damage, and in this attempt- claimed only to have been damaged in a certain sum because owing to the nondelivery of the labels he was not able to keep the contracts for the delivery of goods on which said label was to have been contained and has lost trade and custom by reason thereof to the plaintiff’s damage in the sum of $360.” There is no general allegation of damage, or any allegation of other damage except the loss of trade and custom. It seems to be obvious, that without the allegation of special circumstances, the damages claimed are too remote and not the ordinary and natural measure of the damages, or such as would be the damages which it could be fairly supposed the parties expected, when they made the contract, would flow from the breach thereof. Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209. Having limited itself to the special damage pleaded the plaintiff could not prove any other, and Having omitted to plead damage generally there would be no room for the award of even nominal damages, if indeed an action like the present can be maintained merely for nominal damages.

The interlocutory judgment should be reversed, with costs to the appellant in this court and the court below, and the demurrer sustained with leave to plaintiff to amend within six days, upon payment-of costs.

Giegerich, J., concurs.

McCall, J. (dissenting).

The plaintiff in this action sets up a contract and pleads a breach thereof. Both of these elements in his case must be taken as conceded, being questions of fact. It is true that he does allege special damage, but the averments in this respect-are neither vague nor ambiguous, nor do I believe the damages which he seeks to recover can be classified as either contingent or speculative, nor yet can they be in my judgment held to Tie such as could not reasonably be expected to flow from any default that might arise in carrying out the terms of the contract. Beyond any question upon such facts being proven plaintiff would be entitled to nominal damages at least. Going so far to sustain the well and ofte.n-expressed principle that wherever there is a wrong there should be a remedy to redress it. I favor an affirmance.

Interlocutory judgment reversed, with costs to appellant in this court and court below, and demurrer sustained, with leave to plaintiff to amend within six days, upon payment of costs.  