Majestic Export Co. v. Katz & Greenfield, Inc. ( 1936 )

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.

Present — Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ.

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.