Walsh Bros. v. Ruppert , 7 A.D.2d 896 ( 1959 )

The first cause of action alleging a breach of the lease and of the covenant of quiet enjoyment is manifestly insufficient, since the “right” to purchase defendant’s products at a favorable price and to the patronage of its employees was not an appurtenance of the lease, and there was no eviction, actual or constructive, on which a finding of breach of the covenant of quiet enjoyment could be premised (Herstein v. Columbia Pictures Corp., 4 N Y 2d 117). While the second cause of action alleges elements which set forth minimal requirements of a cause of action for prima facie tort the recovery sought thereon is limited to punitive and exemplary damages. The law is clear that for prima facie tort only actual damages may be recovered (Aikens v. Wisconsin, 195 U. S. 194, 204; Brandt v. Winchell, 283 App. Div. 338, 342). The order appealed from must therefore be reversed, on the law, and the complaint dismissed, with $20 costs and disbursements to appellant, with leave to plaintiff to serve an amended complaint repleading the second cause of action. Concur — Botein, P. J., Breitel, Rabin, Valente and Bergan, JJ.