
    John Hewlett, Respondent, v. Alfred Caplin, Appellant.
   Per Curiam.

The complaint sets forth two causes of action. In the first, the damages claimed consist of plaintiff’s share of royalties from the prospective sales of a book which was the subject of the alleged contract, and of plaintiff’s share of the proceeds of the prospective sales of other rights in the work. The second cause of action, alleged in the alternative, is for damages for breach of the same contract, measured by the reasonable value of plaintiff’s services and expenses incurred by him in connection therewith. The second cause of action was not submitted to the jury as plaintiff, over his objection, was required by the court to elect to go to the jury on one cause of action only.

Though a jury might be warranted in finding that there existed between the parties an agreement complete in its essential terms and a breach thereof by defendant, the record is barren of any proof of damage as to the first cause of action. The verdict for plaintiff in the sum of $9,000 as damages is wholly speculative and without any basis in the evidence. Plaintiff claimed one half of 10% of an unknown retail selling price on an unknown number of copies of a nonexistent book, and a percentage of unknown proceeds from the nonexistent sale of book rights of a book never written or never published. Whether the book would have met with public favor was entirely conjectural. Without a factual basis for computing the amount of the prospective royalties plaintiff could not recover compensatory damages.

Upon proof of the existence of the contract and its breach, plaintiff, perhaps, may be in a position to establish damages as claimed in his second cause of action, measured by the reasonable value of his services and the expenses incurred in connection therewith.

In the circumstances the judgment must be reversed, the complaint dismissed as to the first cause of action and a new trial ordered as to the second cause of action, with costs to the appellant.

Peck, P. J., Dore, Cohn, Van Voorhis and Shientag, JJ., concur.

Judgment unanimously reversed, the complaint dismissed as to the first cause of action and a new trial ordered with respect to the second cause of action, with costs to the appellant.  