I dissent from the conclusion reached in this case by the majority of the court. The plaintiffs have recovered a judgment for damages for the breach of a contract of purchase of an engine and boiler to be delivered for transportation upon a vessel, the damages arising from a delay of seven days in the delivery of the articles. The judgment recovered amounts to the sum of $183, and while there are four items in the plaintiffs’ bill of particulars, the recovery appears to have been made up from two of such items only, viz., one representing the actual expense incurred by the plaintiffs in the delay, amounting to $15, and the other being for demurrage in the detention of the vessel, seven days- at $24 per day, amounting to $168. It, therefore, appears that almost the entire claim is made up *514of the item of demurrage. It is stated in the prevailing opinion that the property was to be delivered to a customer of the plaintiffs. “ on a certain day on board a vessel which was held for the purpose of receiving such engine and boiler.” The inference is, from the language of the opinion, that these facts were known to the defendants. The defendants did know that the engine and boiler were to be delivered to a customer on a certain day on board a vessel, but there is no evidence whatever in the case that they knew that the vessel was to be held for the purpose of 'receiving them. Nobody testifies to it, and there are no facts in the case from which such an inference may be drawn. The complaint was oral,- and alleged only damages for a breach of contract. In the absence of any proof tending to show that the defendants knew that a. failure to deliver the property would entail special damages upon the plaintiffs for the demurrage, and in the absence of any claim in the complaint of such special damage, the recovery of this large sum is manifestly unjust and illegal. There is nothing to the contrary in the case of Booth v. Spuyten Duyvil Rolling Mill Co. (60 N. Y. 487), the only authority cited in the prevailing opinion.
It is true there was no denial by the defendants that they knew that the boat was to be held for the purpose of receiving the property, but I know óf no rule of law which requires the defendants to deny a fact which is not proved and not pleaded. The evidence of the amount of demurrage was received without objection, but that fact does not prevent this court from doing justice in the case, because the evidence of the defendants’ knowledge might have been supplied afterwards by the plaintiffs.
Judgment of the Municipal Court affirmed, with costs.