American Structural Steel Co. v. Rush — 100 N.Y.S. 1019

Majority

p. 1019

AMERICAN STRUCTURAL STEEL CO. v. RUSH.

(Supreme Court, Appellate Term.

November 14, 1906.)

Headnote

Damages—Breach of Agreement—Nominal Damages.

One suing for a breach of an agreement entered into on a compromise of a substantial controversy between the parties is, in the absence of evidence of substantial damages, entitled to nominal damages.

[Ed. Note.—Eor eases in point, see vol. 15, Cent. Dig. Damages, § 31.] Dowling, J., dissenting.

Appeal from City Court of New York.

p. 1020

Action by the American Structural Steel Company against Myron C. Rush. Prom a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GIRDERSREEVE, DUGRO, and DOWRING, JJ.

Merrill & Rogers, for appellant.

James W. Ridgway, for respondent.

It seems that the contract, upon a breach of which the action is based, was entered into for a sufficient consideration. The defendant agreed, among other things, to retain counsel, and plaintiff agreed to abide by the result of the action in the way in which the contract specifies. The parties had a substantial controversy. It was as to whether the $500 was due. It was compromised by the making of the agreement in question. There may well be a question as to whether there was evidence of substantial damages, but certainly nominal damages were recoverable, and in the interests of justice the judgment will be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and. new trial ordered, with costs to appellant to abide the event.

DOWRING, J., dissents.