
    (83 App. Div. 191.)
    RAILWAY ADVERTISING CO. v. STANDARD ROCK CANDY CO.
    (Supreme Court, Appellate Division, Second. Department.
    May 28, 1903.)
    1. Contract — Breach—Damages.
    A railway advertising company contracted with defendant, by which the latter authorized the advertising company to insert cards in the cars-in a certain city for a specified time, for a stipulated monthly payment. Defendant repudiated the contract the day after it was made, but the advertising company continued the performance of the contract. Held, that where it did not appear that the advertising company could have rented the space reserved for the defendant it was entitled to recover the full contract price.
    Appeal from Trial Term, Kings County.
    Action by the Railway Advertising Company against the Standard Rock Candy Company. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    The following is the opinion of RICH, J., at Trial Term:
    January 28, 1898, plaintiff and defendant entered into a written agreement, whereby the defendant authorized the plaintiff to insert its advertising cards in 187 cars in Providence, R. I., during the months of February, March, April, September, October, November, and December, 1898, and February, March, and April, 1899, for which the defendant agreed to pay the plaintiff the sum of $112.20 monthly. It was agreed that in case of the omission of any reasonable number of cards from the cars the defendant should be entitled to a pro rata rebate for such cars as may have been omitted. Prior to the execution of this agreement a similar contract for advertising space in St. Louis cars had been entered into between the parties, and this contract was canceled, and the Providence contract (the one in suit) substituted in its place. The day after this agreement was executed the defendant, by its president, informed the plaintiff that it repudiated the contract, and would not be bound by it. On the 5th day of April, 1898, an action was instituted in the Municipal Court for the recovery of the installment for the month of February, in which the plaintiff succeeded. Railway Advertising Co. v. Standard Rock Candy Co., 29 Misc. Rep. 115, 60 N. Y. Supp. 265. The defendant claimed in that action that it had rescinded the contract on the ground that it was fraudulently obtained, and therefore void. It was held,. however, that the contract was valid and binding. Here it is claimed by the ’defendant that it repudiated and countermanded the contract, which it now concedes to be valid and binding, immediately after it was made, and before anything was done thereunder; that the plaintiff was not entitled to continue performance, but was bound to stop, and look to the defendant for damages on the latter’s part. This, of course, would he true if the contract was for the employment of labor and services, and yet it appears affirmatively that the plaintiff was unable to rent all of the empty space in the Providence cars during the period covered by this contract; and, while the burden of proving that the plaintiff had neglected to lessen the damages rested with the defendant (Hamilton v. McPherson, 28 N. Y. 77, 84 Am. Dec. 330), no evidence whatever was given tending to show that the plaintiff was able to rent this-space. I agree with the plaintiff that the true intent and meaning of the contract was that the defendant should rent a certain space In the Providence-cars to be used by it for advertising purposes, and was entitled to this space for its own use. It was not a contract of hiring — it was an agreement to insert defendant’s advertising card in a certain space in the Providence cars; and this is evidenced by the fact that the contract itself provides: “This-contract conveys no right to the party signing it to assign or sublet the space leased under it.” The plaintiff upon its part performed this contract, ancl the defendant is bound to perform on its part, and cannot excuse a breacli by repudiation. The plaintiff is therefore entitled to recover the sum of §102 for each of the nine months subsequent to the commencement of the first action, with $181.06 interest; and the plaintiff may have judgment against the defendant for $1,099.06, with costs, and an additional allowance of 5 pear cent, upon the recovery.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
    Wilson, Barker & Wilson, for appellant.
    Einstein & Townsend, for respondent.
   PER CURIAM.

Judgment affirmed, with costs, upon the opinion

of Mr. Justice RICH at Trial Term.  