Opinion
November 27, 1950.
Action to recover damages for breach of contract. Order denying motion to dismiss complaint for insufficiency modified on the law by striking out the first and second ordering paragraphs and by inserting in lieu thereof a provision that the motion to dismiss the first cause of action is granted. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to the appellant. It is admitted in the complaint that plaintiff has received the advances for which provision is made in the annexed contract. The contract provides that such advances shall be all the damages to which plaintiff is entitled in the event of breach of the contract by defendant. This contractual provision is clear and unambiguous and provides for compensation, in lieu of damages difficult of ascertainment, which cannot be said to be unreasonable; nor can it be deemed to be a penalty. ( Little v. Banks, 85 N.Y. 258; Curtis v. Van Bergh, 161 N.Y. 47, 52; Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N.Y. 479, 485.) Carswell, Acting P.J., Johnston, Adel and Wenzel, JJ., concur; MacCrate, J., not voting. [ 198 Misc. 162.]