App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. tingencies, and are altogether too uncertain to furnish any safe guide in fixing the amount of damages. In Walker v. The Erie R. R. Co. (63 Barb. 260) it was held that proof of the amount of income derived by the plaintiff for the year preceding the injury, from the practice of his profession as a lawyer, was competent. This goes beyond the rule adopted in any of the other cases, and it certainly ought not to be further extended. Whether proof of the income derived by a lawyer from the past practice of his profession, is competent for the purpose of authorizing the jury to draw an inference as to the extent of the loss sustained by inability to personally attend to business, may, I think, well be doubted. There is no such uniformity in the amount in different years, as a general rule, as to make such inference reliable. But the profits of importing and selling teas are still more uncertain. In some years they may be large, and in others attended with loss. The plaintiff had the right to prove the business in which he was engaged, its extent and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for others. These are circumstances the jury have a right to consider in fixing the value of his time. But they ought not to be permitted to speculate as to the uncertain profits of commercial ventures in which the plaintiff, if uninjured, would have been engaged." If this was true of an importer of tea, where the continuance of the business was reasonably certain, it applies with greater force where the business depended, for its very existence, upon the result of competitive bidding for public contracts. In the case at bar there were not only the risks of business losses, but there was an uncertainty even of having any business, and the partnership between Messrs. O'Grady and Read was a mere temporary affair, in which the profits were divided from month to month. In the case of Masterton v. Village of Mount Vernon (supra) the plaintiff had testified that he was in the tea importing and jobbing business, buying and selling teas, and had been for a great number of years; that he had a partner who attended to the sales, while he made the purchases; that in purchasing teas a high degree of skill was necessary, which the plaintiff possessed; that the business was extensive; that in consequence of the injury the plaintiff could not purchase teas, and there was a great falling off in the SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. business of the firm. The Court of Appeals, in discussing the case at page 395, speaking through Judge GROVER, say: "I also think the judge erred in overruling the defendant's objection to the following question: About what had been your profits, year by year, in that business?" Continuing the discussion the court say: "In Lincoln v. Saratoga & S. Railroad Co. (23 Wend. 425) it was held, in an analogous case, that the plaintiff might prove that he was engaged in the drygoods business, and its extent, but there was no attempt to prove the past profits of the business, with a view to show what the future would be. Where, in such a case, the plaintiff has received a fixed compensation for his services, or his earnings can be shown with reasonable certainty, the proof is competent. (McIntyre v. N. Y. C. R. R. Co., 37 N. Y. 287; Grant v. The City of Brooklyn, 41 Barb. 381.) In Nebraska City v. Campbell (2 Black, 590) it was held that proof that the plaintiff was a physician, and the extent of his practice, was competent. Wade v. Leroy (20 How. [U. S.] 34) held the same. In none of these cases is any intimation given that proof may be given as to the uncertain future profits of commercial business, or that the amount of past profits derived therefrom may be shown, to enable the jury to conjecture what the future might probably be." In the case of Ehrgott v. The Mayor (96 N. Y. 264), cited in behalf of the plaintiff, there is no modification of this doctrine; for the court distinctly say (at p. 276): "So here the plaintiff's income was not from capital invested, but solely from his personal skill and services; and his earnings for the six or seven years showed what his services were worth to himself, and what he was capable of earning, and thus gave the jury a basis from which to estimate his pecuniary loss." That was a case where the plaintiff, who had been injured, had been engaged in selling encyclopædias on commission, and he was permitted to show what he had earned in selling these books during a period of six or seven years. The court say: "It would have aided the jury but very little to place before them the nature of his business, and the number of volumes of the cyclopædia sold. The question was how much did he earn, and how much was he capable of earning; and proof which would furnish answers to these questions would enable the jury to determine how much he had lost from his inability to continue his vocation." App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. If the plaintiff in the case at bar had introduced evidence to show that the earnings of the copartnership were dependent upon the skill of the deceased, or that the services which he personally performed were of a certain value, there would have been no reasonable doubt of its competency; but under the rule recognized by the Court of Appeals in the cases above cited, we are unable to see how the evidence of Mr. O'Grady as to the net income of the firm from a speculative contract could be competent as showing the earning capacity of the deceased. "There," say the court, in the case of Ehrgott v. The Mayor (supra), in distinguishing Masterton v. Village of Mount Vernon (58 N. Y. 391), "the profits resulted, both from capital and services, and the services were rendered both by the plaintiff and his partner, and hence it could not be known how much of the profits were due alone to the plaintiff's skill and services. It was under such circumstances that it was held that the profits depending upon all the contingencies of trade and commerce, of wind and water, were too uncertain as a guide for the jury," and this is the situation in the case at bar. "In no case has it been permitted," say the court in the case of Johnson v. Manhattan Railway Co. (52 Hun, 114), "where the profits of business arise from the investment of capital, that evidence of such profits should be offered for the purpose of enhancing the damages. It is only in cases where the earnings proceed entirely from the plaintiff's labor that the evidence becomes admissible." This doctrine is clearly recognized by Mr. Justice CULLEN in the case of Thomas v. Union Railway Co. (18 App. Div. 188) where he says, in delivering the opinion of the court, that "We think the evidence of the plaintiff's earnings was properly admitted. The occupation in which he was engaged, in partnership with his father and brother, simply employed the personal services of the parties. Its earnings in no way proceeded from the use of capi tal, nor were subject to the hazard of business ventures." (See Grant v. City of Brooklyn, 41 Barb. 384.) In the case of Dickinson v. IIart (142 N. Y. 183), relied upon by the plaintiff to support the admission of the evidence as to the net earnings of the firm of which the plaintiff's intestate wes a member, the action was for a breach of contract, and as was said in the case of Walker v. Erie Railway Co. (63 Barb. 267) "the rule SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. so carefully maintained and guarded in actions upon contracts and for tortious injuries to property, is incapable of being applied where the injury is to the person; for those injuries are without precise precuniary measure." The court clearly recognized the correct rule, for it was said: "But the peculiar nature of this agreement is such that the only general rule of damages which could be applied was the value of the agreement to the plaintiff at the time of its breach." Under this view of the case the plaintiff was allowed to prove the gross amount of his sales in each of the two years he was in the defendant's store, and the amount of his net profits, showing that during the last year his sales and profits had largely increased. Clearly this has no analogy to the case at bar, where the effort is to arrive at the pecuniary loss sustained by reason of the death of plaintiff's intestate, due to the negligence of the defendant. "Loss of profits consequent upon a tort, as well as a breach of contract, are allowed," say the court in the case of Schile v. Brok hahus (80 N. Y. 620), “provided they are such as might naturally be expected to follow from the wrongful act, and are certain both in their nature and in respect to the cause from which they proceed. * * * If a business is entirely broken up, the amount previously done is ordinarily pertinent upon the question of the amount which might subsequently be done, and the same is true of a partial interruption of business." This case, also cited in behalf of the plaintiff, is far from sustaining the trial court in its ruling upon the admission of the evidence of Mr. O'Grady, and a careful scrutiny of the authorities fails to find anything which tends in that direction. We are forced to conclude, therefore, that it was error to admit this evidence. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment and order reversed and new trial granted, costs to abide the event. App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANDREW D. BAIRD and Others, Plaintiffs, v. LEWIS NIXON and Others, Defendants. New York city - the mayor has power to remove the commissioners of the new East River bridge — such bridge is a municipal and not a State work — tenure of office of such commissioners · it is not within the protection of the veteran acts. Under section 95 of the Greater New York charter (Chap. 378 of the Laws of 1897) This bridge is, in its construction, a municipal work of the two cities, prosecuted The office of such a commissioner is not of the subordinate character embraced MOTION by the defendants, Lewis Nixon and others, for a new trial made upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term. Henry C. M. Ingraham, for the plaintiffs. Almet F. Jenks [George Hill with him on the brief], for the defendants. APP. DIV.-VOL. XXXII. 65 32 513 34 577 32 513 158a 221 |