
    Robert S. Orsor, Resp’t, v. Metropolitan Cross-Town Railway Company, App’lt.
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed May 14, 1894.)
    
    Damages—Personal injuries.
    In an action for personal injuries, the plaintiff has a right to recover for his pecuniary loss caused by his inability to perform his usual work, and a question calling for his income from his personal services is admissible if he knows what his earnings were.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Henry Thompson, for app’lt; F. M Brigham,for resp’t.
   Brown, P. J.

The plaintiff was injured by being thrown from the platform of one of the defendant’s cars, on account of the mismanagement of the car by the driver and conductor. Upon the trial he was asked the following question: “ Q. What were your average earnings during that ten months, as near as you can estimate them?” The plaintiff answered, over the defendant’s objection and exception: “ I think my earnings would average about $40 a week during that ten months.” The court was asked to charge the jury that plaintiff could not recover for loss of time and business, which request was refused, and the jury were told that they might allow him, as one element of his damages, “ the pecuniary loss sustained in the way of wages,” and to this charge defendant excepted, upon the ground “ that it was not proven in the evidence, but left so vague and indefinite that it ought to be thrown out.” Prior to being asked the .question referred to plaintiff had testified how the injury that he received affected his ability to do the work he -was engaged in prior to the ‘accident; that at the time of the accident he had an interest in a business of one-third of the profits, which he received, not as a partner, but as compensation for his services as an employee; and that an agreement had existed for ten months preceding the accident. Before that period he had been with the same persons, having a half interest. The following question was then asked: “By the court: Q. What were your average earnings for that ten months? A. I have not prepared the earnings, as I did not think that would come up. I couldn’t tell that. Q. Did you lose your pay from the time you were sick ? A. I received one small amount after I was injured, but I couldn’t get out, and they objected to my drawing money.”

Upon cross-examination he testified: “The concern I was with six years' was : Orsor and Anderson.’ Orsor was my wife, and Anderson was his wife. They went gut of business. B. Anderson took up the business then. He is the husband of the Anderson gf the old firm. My arrangement with him was that I was to have one-third of the profits. I never had a settlement with Anderson, so I don’t know what the profits were for those ten months.”

The question as to the plaintiff’s earnings was admissible and the objection was properly overruled. Ehrgott v. Mayor, 96 N. Y. 264. The plaintiff had a right to recover for his pecuniary loss caused by his inability to perform his usual work, and the question called for his income from his personal service, and did not involve any element Of income from invested capital. In this respect the case is distinguished from Masterton v. Village of Mount Vernon, 58 N. Y. 391, and Johnson v. Man. Railway Co., 52 Hun, 111; 23 St. Rep. 388. But the jury should not have been permitted to consider this element of the case, foi; the reason that it was evident plaintiff did not know what his earnings were. He so stated in answer to the court and upon cross-examination. He was injured on February 9, 1893, and the trial took place in October, 1893. The period covered by his arrangement with Anderson was from April, 1892, to the time of the accident. It would have been entirely competent for him to have stated the amount that he had actually received during that period, but he was no-asked that question. Notwithstanding he stated that he had had no settlement with Anderson, and was not prepared to say, and , could not tell, what his earnings were, he was "permitted to say what he thought they would amount to, and the jury were permitted to consider that evidence as one ofethe elements of his damages. The evidence was insufficient to support any finding as to the plaintiff’s income, and the exception to the charge was well taken. The judgment should be reversed and a new trial granted, costs to abide the event.  