
    Lewis A. Dowd, Respondent, v. Richard H. Krall et al., Appellants.
    (City Court of New York, General Term,
    July, 1900.)
    1. Services — An. allowance for “ expenses ”, per diem, does not include daily board.
    Where employers promise in writing to pay an employee a “ salary of $900 per annum and an allowance for his expenses not to exceed the average of $5 per day ”, he cannot recover of them, under the allowance for his expenses, his daily board or living expenses.
    2. Same — Proof of value of board.
    The employee cannot be permitted to “ estimate ” the value of his board per diem, but should give the facts and the jury should: make the estimate.
    
      Appeal from judgment entered in favor of plaintiff upon a verdict rendered by a jury, and from an order denying a motion to set aside the verdict and for a new trial made and entered on the 12th day of December, 1899. Action for wrongful discharge.
    Shiland & Honeyman (Herbert B. Shoemaker, of counsel), for appellants.
    Delany & Murphy (John J. Delany, of counsel), for respondent.
   Schuchman, J.

In Brown v. Baldwin & Gleason Co., Limited, 37 N. Y. St. Repr. 363, which was an action for damages for the alleged wrongful discharge of the plaintiff from the defendant’s service, the same as the one at bar, the verdict awarded the plaintiff $220 expenses for board, car fare and lunches incurred when he was no longer in the defendant’s service, and Judge Pryor, in his opinion, says: “We are aware of no principal or precedent which justifies this recovery.” This was obiter. The agreement of the parties there was that the plaintiff should receive $25 a week, his “ traveling expenses to be borne by the defendant.” La the case at bar, the agreement is, that plaintiff should receive a “ salary of $900 per annum and an allowance for his expenses not to exceed the average of $5 a day.” We do not think that this includes “ living expenses.” It was not contemplated by the contracting parties that “ living expenses,” to wit, “ board,” were to be an item or part of the daily allowance of $5. The payment of salary of $900 is to be considered, in construing the said covenant, as to whether board was included or intended to be included in the $5 expense item. Usually an employee pays his board out of his salary. Besides, this plaintiff earned salary and was allowed expenses, with another employer, during the period for which he seeks to recover board. Damages for breach of contract are those which are incidental to and directly caused by the breach, and which may reasonably be presumed to have entered into the contemplation of the parties. Hamilton v. McPherson, 28 N. Y. 72. We conclude that the allowance of the item, “Actual living expenses from May 31st, 1896, to January 1st, 1897, at two dollars per day, $424.66,” included in the verdict, was error.

The plaintiff testified that two dollars a day for living expenses was a very conservative estimate; “ two dollars a day is what I estimate it at.” This was objected and excepted to. The plaintiff should have testified to facts and figures; from which the jury could make the estimate. Here, the plaintiff was allowed to testify to and make an estimate which it was the function of the jury to make.

Judgment and order appealed from reversed and new trial ordered, with costs to appellants to abide event.

Hascall, J., concurs.

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