Opinion
November 7, 1949.
Order denying motion to dismiss complaint for failure to state a cause of action reversed on the law, with $10 costs and disbursements to defendant appellant, and motion granted, with $10 costs, with leave to plaintiffs to plead over within ten days after entry of the order hereon. The complaint fails to state facts showing damage has been sustained. The fourteenth paragraph is a mere conclusion unsupported by any allegation of fact justifying the conclusion that the receipts for the trial period were "padded". Moreover, there is no allegation of fact from which it can be inferred that plaintiffs have been damaged by the alleged false representation. The measure of plaintiffs' damage is the difference between what they paid for the store and its value at the time they bought it. ( Reno v. Bull, 226 N.Y. 546, 553; Sager v. Friedman, 270 N.Y. 472, 481.) No allegation in the complaint warrants an inference that the store is worth less than the price plaintiffs paid. ( Cohen v. Kohler, 158 App. Div. 435.) No allegation states what is claimed to have been the actual weekly gross receipts before the sale to plaintiffs, or the difference between the actual and the represented gross sales. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.