Merchants Importing, Inc. v. Kuhn & Schneider, Inc.

Order entered July 28, 1966 appealed from, unanimously modified, on the law, and the motion granted to the extent of dismissing the fourth cause of action. As so modified the order is otherwise affirmed, without costs or disbursements to either party. The fourth cause seeks an accounting of moneys and profits made by defendants. The complaint does not allege or establish any fiduciary relationship so as to entitle plaintiff to the relief sought. Nor are such special circumstances present as warrant equitable relief in the interests of justice (cf. Kaminsky v. Kahn, 23 A D 2d 231). Plaintiff’s damages are not measured by moneys or profits made by these defendants. Plaintiff’s damage, if any, is the difference between what plaintiff actually earned and what it would have earned but for the alleged wrongful acts. Plaintiff only would be entitled to compensation for pecuniary loss directly and proximately resulting from the alleged wrong (see Reno v. Bull, 226 N. Y. 546 ; 13 N. Y. Jur., Damages, § 16 et seq., § 108), and not entitled to be placed in any better position than if the wrong had not been done. Concur—Stevens, J. P., Steuer, Capozzoli, McNally and Witmer, JJ.