
    Robert L. Dunn, Respondent, v. The New York Herald Company, a Corporation, Appellant.
    Second Department,
    December 30, 1910.
    Damages—breach of agreement to delay publication of photographs—¡ failure to show substantial damages.
    A plaintiff who furnished photographs to a newspaper upon the condition that they were not to be published until notice from him in order that they might
    
      appear simultaneously in all newspapers to which he might furnish them, cannot recover more than nominal damages where the defendant published the ■ pictures before notice, if he merely shows that other newspapers returned the photographs to him. This, because assuming the breach of. contract, there is no proof of substantial damages, or of any sale or contract with other - newspapers, so as to show a loss of prospective profits to which the plaintiff was entitled.
    In such action the plaintiff is not only bound to show that the damages were cer- • tain in their nature, but also tlikt they were fairly within the contemplation of the parties. •
    Hirschberg, P. J., and Rich, J., dissented.
    Appeal by the defendant. The New York Herald Company, a Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of November, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of November, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert W. Candler, for the appellant.
    
      Samuel E. Darby [Frank Trenholm with him on the brief], for the respondent.
   Jenks, J.:

The plaintiff made photographs of rooms in the executive , mansion in Washington, D. C., to sell to newspapers and periodicals. They were made up in sets of 14 each.' The plaintiff sold 7 photographs to the defendant for $21, who published them., The plaintiff’s grievance is that such publication was in violation of the ■ agreement between the parties, which was that there should not be ■ publication until, after notification. He sued for and has recovered $2,000 damages, upon the contention that he had sold some of the photographs to 100 other newspapers and periodicals ; that the condition of every sale, as to publication, was like unto that of the sale to the defendant, so'that upon notification to all, every publication would be practically simultaneous. He asserts that' when the defendant published the photographs prematurely, the other purchasers refused to use the photographs and threw them back upon his hands to his total loss. Assuming that the evidence justified a finding of breach of contract, there is no evidence that justified a finding for substantial damages. The testimony of the plaintiff shows that he sent various pictures to a number of newspapers and periodicals as for sale at a stated price for publication, and that they were subsequently returned to him without publication. But I fail to find sufficient proof of any sales to other newspapers or periodicals, or of any contracts of sale with them. Admittedly the damages were for loss of profits, and hence it was essential for the plaintiff to show the right to reap profits, and this lie has failed to do. Further, the plaintiff was not only bound to show that the damages sought to be recovered were certain not only in their nature and with respect to the cause thereof, but also that they were fairly within the contemplation of the parties when they made the contract ( Witherbee v. Meyer, 155 N. Y. 446, and authorities cited), and it seems to me that there was a failure of proof in this respect also. The judgment and order should be reversed and a new trial be granted, costs to abide the event, unless the plaintiff consent to reduce the damages to 6 cents, in which case the judgment and order are affirmed.

Burr and Carr, JJ., concurred; Hirschberg, P. J., and Rich, J., voted for affirmance.

Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff consent to reduce the damages to six Cents, in which case the judgment, as modified, and order are affirmed.  