
    Richard Hirsh, Respondent, v. Press Publishing Company, Appellant.
    First Department,
    December 30, 1910.
    Damages — sale of material in building to be removed within stated time :—measure of damages on prevention of performance by seller — evidence — cost of removal.
    Where the purchaser of material in a building was required to remove it within fifteen days after notice in order to retain title, but was prevented from removing a part of it by the seller, the measure of damages is the value of the material not removed less the reasonable cost of removal.
    In an action to recover damages for the breach of said contract, it is error to allow the plaintiff to show the price at which a third person had agreed to remove the material for him after the breach, for such contract, which might be favorable to the buyer, does not measure the reasonable cost of removal.
    Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the. office óf the clerk of the county of New York on the 23d day of Hovember, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Harry M. Maries, for the appellant.
    
      Emanuel 8. Gahn, for the respondent.
   Miller, J.:

On the 8th of October, 1907, one John E. O’Connor purchased of the defendant its elevator plant and steam pumps iir a building known as the World Building. The agreement provided :

“ It is understood that we are to remove the freight elevators and machinery immediately on acceptance of this letter and the rest of the’ elevators and pumps immediately upon notice from you that théy are out of commission. You to run over all of the material to us on or before the first-day of March, 1908. It is further understood that all of this material is to be removed without inconvenience to the Press Publishing Company or their tenants under the superintendence of your representative within fifteen (15) days, after notice-from you that the said material is ready to be removed, and after said fifteen (15) days all our right and title to said machinery shall cease. JOHN E. O’CONNOR.”

The contract was assigned to D. Lowey & Go. on the fifteenth of October. The assignee started in to remove the material some time- in November, but discontinued the work pursuant to an arrangement with one Williamson, the defendant’s superintendent, that the latter would notify them when to resume. On the twenty-ninth of February Williamson notified-' said assignee to resume work, and work was resumed on March second. On the thirtieth of March a dispute arose which resulted in said assignee discontinuing the work of .removal. . There is a dispute whether that was done pursuant to the order of said Williamson. The plaintiff brings this action as assignee of said D. Lowey & Co. to recover for the material not removed.

It is to be observed that all material was to be removed within fifteen days after notice. If does not appear to what the delay beyond the fifteen days was due. That question does not seem to have been raised on the trial, and was not submitted to the jury. We must assume on-this appeal that the plaintiff’s assignor had the, right, on the thirtieth of March, to continue the work of removal, and that it ivas prevented by the wrongful act of the defendant. The important question, then, is the question of damages.

Obviously, the plaintiff was entitled to the value of the material not removed, less the reasonable cost of removal. The plaintiff’s witness, Beichman, made a rough estimate that there were 300 tons of iron ; 145 tons had been removed, so the plaintiff claimed for 155 tons at $10 a ton, for an elevator shaft, and for pumps claimed to have been worth. $300 and $3,300 respectively, less the cost of removal. The verdict was for $2,700. The defendant’s evidence tended to show that it would cost all the material was worth to remove it, and a careful reading of the record leaves a doubt in my mind whether that may not have had something, to do with the dispute of March thirtieth, and with the determination of the plaintiff’s assignor to abandon the work. The plaintiff was permitted to prove, over the objection and exception of the' defendant, that his assignor had made a contract with Heinrichs & Denning to .remove the material, covered by, the contract, for $1,500. At the close of the charge the following occurred: “ [Plaintiff’s Counsel] : Having in mind your Honor’s remarks that there was testimony in this case, that it would cost more to take out the iron- than it was worth, I ask your Honor to charge that if the jury believes that the plaintiff had a contract for the removal of all the iron including that which was left in the building, that what it Would ordinarily cost to remove it, is not an-element in this case. The Court: I so charge. (Exception by defendant.) [Defendant’s Counsel] : I ask your Honor to charge that in such a case as this, the measure of damage is the difference between the market value and the agreed price, less the cost of labor for removal. The Court: I decline to charge that. [Exception by defendant-.] ”

These rulings require a reversal of the judgment.

It is unnecessary to cite authority upon the proposition that the damages recoverable for breach of contract are such as may fairly be said to have been within the contemplation of the parties. While, of course, the certainty of proof required may vary according to the circumstances and necessities of the case, it has never been held, so far. as we are aware, that a party claiming damages may have the benefit of favorable contracts, made by him with third parties after the making of the contract for breach of which damages are claimed. As well might the plaintiff have been permitted to show that some one had agreed to remove the material for nothing or that he had contracted tó sell it for several times its-market value as a basis for recovering, not the value of the property, but what he would in fact have realized by reason of his favorable contract. Such damages are not allowable. (Masterton v. Mayor, etc., of Brooklyn, 7 Hill, 61; Story v. N. Y. & Harlem R. R. Co., 6 N. Y. 85; Devlin v. Mayor, 63 id. 8; Brodie v. Fost, 123 App. Div. 749.) The cases cited, by the respondent-of contracts to manufacture and deliver goods are not in point. In such cases, the rule doubtless is that the measure of damages-is the difference between the contract ¡Dricé and the cost to manufacture and deliver. These cases are exceptions to the general rule that loss of profits cannot be recovered, but, even in them loss of profits cannot be based on future bargains or speculations. ■ .

The judgment and order should be reversed- and a new trial granted, with costs to appellant to abide the event.

Ingbaham, P. J., Clabke, Scott and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  