
    David W. Zabinsko, Respondent, v. Bedford Garage, a Domestic Corporation, Appellant.
    Second Department,
    October 12, 1909.
    Damages — breach of contract — profits.
    In an action for the breach of a contract giving the plaintiff a portion of the profits made by operating a sight-seeing motor bus, it is error to allow such profits as he might have made had the weather permitted him to make trips with a full complement of passengers during the entire period of the breach, including a time when the car could not be operated by reason of injury by fire.
    Appeal by the defendant, Bedford Garage, a domestic corporation, from a judgment of the Municipal Court of the city of New York, borough of- Brooklyn, in favor of the plaintiff, rendered on the 14th day of October, 1908.
    
      George L. Robinson, for the appellant.
    
      Sidney F. Strongin, for the respondent.
   Hirschberg, P. J.:

The action is brought to recover damages for the breach of an oral agreement by which the parties were to operate two sight-seeing cars on a route between East New York and Prospect Park, Brooklyn, from early in July, 1908, to October first. The defendant was to furnish the cars from its garage, and after deducting the expense for gasoline and chauffeurs, the net proceeds were to be divided, the plaintiff receiving forty and the defendant sixty percentum. The plaintiff was to furnish the passengers. He claimed that the agreement provided for the operation of the cars during the period named, while the defendant claimed that the venture was to continue only so long as it proved profitable. After the first week of operation, the defendant’s garage was burned and the cars injured to an extent which rendered it impossible to run them until they were repaired, and there was consequently an enforced delay of three weeks or more. At the end of this period, the defendant again furnished the cars and they were operated by the plaintiff for a short time, when the defendant refused to continue on the ground that it was not making any money.

On this proof the court has awarded the plaintiff a judgment for the sum of §127.50 damages, apparently arrived at on the assumption that 170 trips could have been made during the period covered by the plaintiff's testimony and that he would have profited to the extent of seventy-five cents, on each trip. The evidence, however, shows that the 170 trips could have been made only provided the weather had been favorable during the entire period, including the time lost by reason of the fire, and that the profit of seventy-five cents per trip was based upon a full load on each occasion. , In other words, the damages awarded gave the plaintiff the sum which he would have made had he run the cars without missing a trip from early in Jnly to the first of October and without an empty seat. This is manifestly erroneous-and requires a new'trial, and as there is to be a new trial, I deem it proper to call attention to the fact that there was considerable evidence received which was improper on the question of damages, but which the court stated that it would receive, not as legal proof of damage, but “ as a guide.”

The judgment should be reversed and a new trial ordered, costs to abide the event.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  