
    Harris Gottheim, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    (Supreme Court, Appellate1 Term,
    July, 1908.)
    Evidence — Opinion evidence — Distinction between matters of fact and conclusions of law — Damages — Profits of business.
    In an action to recover damages for personal injuries, it was error to permit plaintiff to testify that his average profits were forty dollars each week; and, without proof of the cost of rent or amount of capital invested, the plaintiff’s testimony as evidence of the amount of loss of profits is too speculative and conjectural.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    George D. Yeomans (A. M. Williams, of counsel), for appellant.
    Grauer & Rathkopf, for respondent.
   MacLean, J.

The plaintiff in this action to recover for personal injuries testified that he was a tailor, employing three men at the time of the accident who averaged fifteen dollars per week profit; that he had a stock of cloth and materials to make suits of; that he paid rent for his store, and that he gave his own personal attention to the business, cutting, trying on, taking orders and giving out work, and, over objection and exception, testified that his average profits were forty dollars each week. He had already testified to the sum of forty-five dollars for medicines and medical services, as he testified to an absence of five weeks from business. In the charge to the jury, the court, among other things, said: If you do find for him, you must not find any less than the sum of one hundred and seventy dollars, the amount that is figured up already; and you can award him damages for pain and suffering for any amount additional, from one dollar up to three hundred and thirty dollars.” Exception was taken thereto by the defendant. There being no evidence of the cost of rent or of the amount of capital invested, the evidence of the amount of loss of profits is too speculative and conjectural. The evidence disclosed related to profits, not to the value of the personal services of the plaintiff, and so was improperly received and assumed. The judgment should, therefore, he reversed.

Gildersleeve and Seabury, JJ., concur.

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