Robert L. Dunn, Respondent, v. New York Herald Company, a Corporation, Appellant

Robert L. Dunn, Respondent, v. New York Herald Company, a Corporation, Appellant. Second Department, May 3, 1907. Pleading—breach of contract by premature publication of pictures— allegation of special damage not separate cause of action. A complaint which alleges that the defendant, a newspaper, which together with other newspapers had recei ved pictures furnished by the plaintiff under an agreement not to publish them before a certain date, made a breach of that promise - by prematurely publishing the pictures wheroby they were “ stale,” and the plaintiff lost the benefit of his contracts with other papers, which also asks damages for the injury to the plaintiff’s standing with publishers does not state two causes of action. The allegations as to-plaintiff’s injured reputation go to damages only. Appeal by the defendant, the New York Herald Company, a corporation, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of November, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the demurrer to the complaint. Robert W. Candler, for the- appellant. Frank Trenhol/m \Louis C. White with him on the brief], for the respondent. • . [MAJORITY — Gaynor, J.:] Gaynor, J.: • 'The demurrer that a cause of action for contract and- another for tort have been improperly united, and that the complaint does not state facts sufficient, was overruled below.. The complaint' is that the plaintiff had placed in several newspaper establishments, including that of the defendant, certain pictures for publication on a stated' future day, under an agreement that he was • to be paid therefor on publication ; that the defendant violated this agreement and published them before the arrival of the day, and thus made the picture stale with all the other newspapers, whereby the plaintiff lost the benefit of 1ns contract with them. It is then pleaded in two other paragraphs that by reason of such premature publication the plaintiff’s standing with all the newspapers and publishers ■ of pictures was injured, for which he asks damages in addition to the damages caused immediately by tlie said breach of contract. It is manifest that the complaint does not state two causes of action, but only one. The extra damages claimed may not be provable or , recoverable at all, but the allegation of them does not amount-to a separate cause of action. The pleader had a notion, that he was alleging special damage. There is a good cause of action for breach of contract alleged ; the other allegations go to the question of damage. The judgment should- be affirmed. . - Jenks, Hookes, Rich and Miller, JJ., concurred. Interlocutory judgment affirmed, with costs.-