Majestic Export Co. Inc. v. Katz Greenfield, Inc.

Full title: MAJESTIC EXPORT CO., INC., Respondent, v. KATZ GREENFIELD, INC., Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 23, 1936

248 App. Div. 205 (N.Y. App. Div. 1936)

288 N.Y.S. 941

Opinion

June 23, 1936.

Appeal from Supreme Court of New York County.

Sidney Markowitz of counsel [ Irving R. Markowitz with him on the brief; Markowitz Markowitz, attorneys], for the appellant.

Jacob M. Kram, for the respondent.

Present — MARTIN, P.J., GLENNON, UNTERMYER, DORE and COHN, JJ.

PER CURIAM.

Upon the trial of this action to recover damages for fraud and deceit in inducing plaintiff to enter into a contract with defendant, the proof showed that the transaction resulted in a net profit of $748.60 to plaintiff. Plaintiff, therefore, suffered no actual pecuniary damage, which is an essential element of an action for fraud.

Here the question with respect to damage is not what the plaintiff might have gained if the representation as to the property sold were true, but what it has lost by being deceived into making the purchase. Unlike a suit for breach of contract, the true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong. All elements of profits are excluded. The purpose of the action is to indemnify the party injured. ( Reno v. Bull, 226 N.Y. 546.)

The judgment for plaintiff should accordingly be reversed, with costs, and the complaint dismissed, with costs, and judgment awarded to defendant on its counterclaim in the sum of $1,000.

PER CURIAM.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs, and judgment awarded to defendant on its counterclaim in the sum of $1,000.