Eaton v. Danziger

(dissenting). I dissent because of the reasoning adopted in Eaton v. Reich (138 Misc. 826), which was affirmed, without opinion, in 229 Appellate Division, 864.

In the light of the verdict defendant’s agreement was to subscribe to five $100, six per cent, gold bonds of the Level Club, or in other words to loan the club $500, the loan to be evidenced by five $100, six per cent, gold bonds, and the money to be applied to the erection and equipment of the obligor’s club house. In the absence of special damage, which was neither pleaded nor proven, plaintiff’s damage was the excess of the legal rate of *291interest over the rate stipulated in the bonds, and there being no excess in this instance plaintiff was entitled to merely nominal damages. Defendant having defaulted in performance was not entitled to recover part payment.

Judgment in favor of plaintiff against the defendant Danziger modified by awarding judgment for six cents damages only in favor of plaintiff against said defendant, and as modified affirmed, with fifteen dollars costs to appellant against plaintiff, respondent. Judgment in favor of defendant Level Club, Inc., affirmed, without costs.

Lydon and Callahan, JJ., concur.