#### Mary Ann Norton, Respondent, *v.*Matthias Kull and Christian Kull, Appellants.

(Supreme Court, Appellate Term,

December, 1911.)

Contracts —Actions on contracts — Sufficiency of complaint •— Breach of contract for undertaker’s services; Effect of stating erroneous measure of damages.

Damages — Particular contracts and relations — Miscellaneous contracts — Contracts to inter remains of deceased person.

Judgment — Rendition—At particular stages of the action — Motion for judgment on the pleadings —Where no reply to counterclaim is served.

Pleading: Complaint or declaration—Allegation of damage: Replication or reply and subsequent pleadings — Effect of failure to reply to counterclaim or'set-off.

A complaint which alleges that defendants are undertakers and agreed to bury plaintiff’s- husband in the burial ground of St. Thomas Church in the city of New York, with the best materials obtainable and in the best vacant burial plot to be had in said grounds, but that defendants did not perform their contract but buried plaintiff’s husband in a public grave and that the materials used were not' as represented and by reason thereof the plaintiff was obliged to spend large sums of money in reburying her husband, to her damage, states a good cause of action.

A further allegation contained in the complaint' that, by reason of the facts stated, the plaintiff has been damaged both in mind and body in the extent which she estimates at five thousand dollars, for which she demands judgment, states an erroneous measure of damages, the amount properly recoverable being such as will repay the plaintiff for the money loss she has suffered because of the failure of the defendant to do as agreed, but the complaint is not rendered demurrable thereby.

Where in such a case the defendants set' up a counterclaim, to which the plaintiff does not reply, the defendants will be entitled to offset the amount thereof against any amount that plaintiff may prove as her damage, but a motion by the defendants for judgment on the pleadings is properly denied.

Appeal from an order of the City Court of the city of New York, denying defendants’ motion for a judgment on *477the pleadings, pursuant to section 547 of the Code of Civil Procedure.

Arthur 0. Townsend (Hamilton Rogers, of counsel), for appellants.

Hilton Speiser (Max Greenberger, of counsel), for respondent.

Page, J.

The motion was made upon a complaint and answer. The complaint alleges: (1) that the defendants were copartners and engaged in the undertaking business in the borough of Manhattan, city of New York; (2) that, on the 13th day of January, 1911, the plaintiff- and defendants entered into a contract for the burial of plaintiff’s husband in the burial ground of St. Thomas Church, New York city, with the best materials obtainable and in the best vacant burial plot to be had in said grounds; (3) that to induce plaintiff to enter into the contract defendants falsely represented to the plaintiff that they were authorized to make burials in said grounds, of which they were the sextons, and that the materials they would use were to be of the best kind and nature obtainable; (4) that the defendants did not perform the contract, but buried plaintiff’s husband in a public grave, and the materials were not as represented; (6) that by reason of the above mentioned facts the plaintiff has beén obliged to spend large sums of money in reburying her husband, to her damage; (7) “ that, by reason of the aforementioned facts, the plaintiff has been damaged both in mind and body in the extent which she estimates at Five Thousand (5,000) Dollars,” and demands judgment for $5,000.

. The complaint, in the first six subdivisions, states a good cause of action — alleging a contract, the breach thereof, and that plaintiff was damaged thereby. The seventh states an erroneous measure of damages. Her damage is such an amount as will repay her for the money loss she has suffered because of the failure of the defendants to do as they agreed. In actions of this nature, injuries to the feelings are not to be considered. Davis v. Standard National Bank, 50 *478App. Div. 210. Á complaint is not demurrable because it fails to allege damage. In such case the plaintiff would be entitled to recover nominal damage. Gause v. Commonwealth Trust Co., 111 App. Div. 530, 534. Nor is it demurrable because it states an erroneous measure of damages upon which is predicated the demand for relief. “ It has been repeatedly held under the Code, that if the facts stated in a complaint show that the plaintiff is entitled to any relief, either legal or equitable, it is not demurrable upon the ground that the party has not demanded the precise relief to which he appears to be entitled.” Wetmore v. Porter, 92 N. Y. 76, 80.

The answer contained a counterclaim to which plaintiff failed to reply. The allegations, thereof are, therefore, admitted and defendants will be entitled to offset the amount thereof - against any amount that plaintiff may prove as her damage; but, as the learned justice below well said, “it is impossible to say at the present time whether the amount of the same is sufficient to offset the claim of the plaintiff.”

The motion was properly decided and the order should be affirmed, with ten dollars costs and disbursements.

Seabury and Lehman, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.