FIRST DEPARTMENT, MAY TERM, 1893. receipts, the breach was conceded, it appearing that the defendant had, some months before the first performance was to be given, notified the plaintiff that he would not produce the play at he theater, and that he had persisted in such refusal. The plaintiff thereupon offered to show, by the previous receipts of his theater and by proof of the success of the lay elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by him from other sources during the same period, which offer was objected to and the objection sustained. Held, that the ruling was correct. That as it was entirely uncertain whether the receipts from the defendant's play would have exceeded the amount which the plaintifï actually received during the contract term, it was n means certain that any damages, such as the plaintiff claimed, resulted from the breach, and, hence, the doctrine was not applicable, that where particuler damages are the certain result of the breach, their uncertainty in amount will not prevent a recovery. APPEAL by the plaintiff, Theodore Moss, from a judgment of the Supreme Court, entered in the cffice of the clerk of the city and county of New York on the 2d day of March, 1893, upon a verdict rendered at the New York Circuit allowing the plaintiff six cents damages and awarding costs to the defendant, and from an order denying the plaintiff's motion for a new trial made upon the minutes, entered in said clerk's office on the 1st day of March, 1893. Stephen H. Olin, for the appellant. A. J. Dittenhoefer and David Gerber, for the respondent. BARRETT, J.: The action was for breach of contract. The plaintiff is the lessee of the Star Theater in this city. The defendant is a Boston theatrical manager. The parties entered into what is known as a "sharing terms agreement," whereby the plaintiff was to furnish his theater, orchestra, attendants and equipment for a given period, and the defendant was to furnish a new play called "The Soudan," together with a dramatic company. The gross receipts were to be divided between the parties, each week, in certain specified proportions. Some months before the date when the first performance was to be given, the defendant notified the plaintiff that he would not produce the play at the Star Theater, and he has since persisted in that refusal. Upon the trial, the breach being conceded, the HUN-VOL. LXIX. 37 FIRST DEPARTMENT, MAY TERM, 1893. plaintiff offered to show by the previous receipts of his theater, and by proof of the success of the play elsewhere than in New York, that the receipts during the term of the contract would have been greater than the amount actually received by him from other sources during the same period. The latter amount was specified in the bill of particulars as $13,600. This offer was objected to and the objection was sustained. The plaintiff excepted to the ruling, and the exception presents the sole question upon this appeal. We think the ruling was correct. The plaintiff could, of course, have proved the amount which he actually received for his theater during the term of the contract, but it would have been impossible for him to prove what the receipts from the defendant's play would have been during the same period. His offer specified two elements—namely, the previous receipts of the Star Theater from other attractions, and, second, the success of the defendant's attraction elsewhere than in New York. The first element could have had no possible bearing upon the question of damages. The theater did not draw people because of its attractiveness as a building. Each entertainment there stood upon its own merits. The second element was equally uncertain. Profits, that is, the certainty of receipts beyond what the plaintiff actually took in during the contract term, could not be predicated of the success of the play in other cities before it had acquired a general or established reputa tion. The play was new and it was entirely untried in this city. No one could possibly know, therefore, how it would succeed here. The defendant's dramatic company was not shown to include artists of such exceptional and well-known talent as to guarantee, apart from the play, audiences of reasonably certain numbers. Nor was any special attraction of the latter kind contemplated by the conThe proposed elements were, therefore, speculative and insusceptible of anything like certain proof. The language of BRADLEY, J., in Bernstein v. Meech (130 N. Y. 359), is directly in point, and, we think, controlling. The latter case does not conflict with Wakeman v. The Wheeler && Wilson Manufacturing Co. (101 N. Y. 205). The doctrine there held was, that where particular damages are the certain result of the breach, their uncertainty in amount will not prevent a recovery. But here it is by no means certain that any damages (such as the plaintiff claims) resulted from tract. FIRST DEPARTMENT, MAY TERM, 1893. the breach. It is, in fact, entirely uncertain whether the receipts from the defendant's play would have exceeded the amount which the plaintiff actually received during the contract term. The reasonable certainty that there would have been some receipts from the play, therefore, involved no certainty that damages on that line were caused by the breach. The plaintiff did not offer to show, as did the plaintiff in Bernstein v. Meech, any expenses which he had incurred in preparing for the contemplated performances. This was doubtless because there were here no such expenses, as the plaintiff was notified months in advance of the first performance, that the defendant would not produce the play in the Star Theater. The generality of the plaintiff's offer at the close of the trial was clearly in the line of the two elements which he had previously specified. The "whole line of testimony" which the court excluded was the whole line in these two directions. If the plaintiff intended to offer anything else, he should have specified it. We think that the offer as made was properly ruled upon, and that the judgment should be affirmed, with costs. VAN BRUNT, P. J., and FOLLETT, J., concurred. Judgment affirmed, with costs. CHARLES MEYERS, as Administrator, etc., of CHARLES MEYERS, Deceased, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY AND COUNTY OF NEW YORK, Appellant. "Inspector of regulating and grading streets" in New York city — not a public officer - discharge of, from employment — application of chapter 119 of the Laws of 1888, in reference to veteran soldiers and sailors. There is no such public office as that of "inspector of regulating and grading streets" in the city of New York, and a person who holds such a position, & daily wages, is merely an employee of the city, and is liable to removal as such. When the services of such an employee are dispensed with by the officer who employed him, and who has the power to continue or to cease to employ him, his right to pay ceases, and it is immaterial that the notification that his services are dispensed with states that he is "suspended." 69 291 87 298 69 291 91 473 69 291 7ap204 69 291 12ap539 12ap541 69 291 31ap504 34ap316 69 291 42ap209 69h 2911 80 AD1 13 FIRST DEPARTMENT, MAY TERM, 1893. Semble, that such an employee does not hold a "position by appointment," and that his daily wages are not a "salary," and, hence, that he does not come within the terms of chapter 119 of the Laws of 1898, which prohibit the removal of honorably discharged soldiers and sailors holding a position by appointment in any city or county of this State, receiving a salary," except for cause shown after a hearing had. That even if such an employee was within the terms of said act of 1888, he was not entitled to recover pay from the city while unemployed by it, although he might have been wrongfully removed or suspended by the commissioner of public works. APPEAL by the defendant, the Mayor, Aldermen and Commonalty of the city of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 13th day of February, 1893, upon a verdict in favor of the plaintiff, rendered by direction of the court at the New York Circuit. The plaintiff's intestate served in the United States navy from 1857 to March 15, 1864, when he was honorably discharged. In October, 1886, he was employed by the department of public works as an inspector of regulating and grading the streets of the city, at the rate of three dollars per day, and continued to act in that capacity until April 6, 1889, when he was suspended by the commis sioner of public works by a communication of which the following is a copy: "You are hereby suspended from the position of inspec tor of grading, etc., in this department, without pay from this date." He received his pay to April 6, 1889, and afterwards from time to time reported to the department that he was ready and willing to discharge the duties of the place until July 11, 1889, when he sent to the department a formal resignation of the position. Between April 6 and July 11, 1889, another person discharged the duties which the intestate had previously discharged, and on the same work, and it appears that during this time the decedent was not employed by the department; that he sought other work and was unable to find employment. Between these dates there were seventy-eight working days, the wages for which amounted to $234, to recover which, with interest, this action was brought, and for which sum a verdict was directed, and on which a judgment was entered. This action has been twice tried. On the the first trial, in March, 1891, the complaint was dismissed and a judgment entered, which FIRST DEPARTMENT, MAY TERM, 1893. was reversed by this court in May, 1892. (46 N. Y. St. Repr. 130.) In June following Meyers died. and afterwards letters of administration were duly issued on his estate to the present plaintiff, in whose name this action was duly revived and continued. On the second trial the evidence taken on the first was read, no other or additional evidence being received or offered. William A. Sweetzer, for the appellant. William W. Jenks, for the respondent. FOLLETT, J.: A public officer cannot, without his assent and in the absence of statutory authority, be deprived of the salary attached to his office by being suspended or prevented by his official superiors from temporarily discharging the duties of his office. So long as he remains a public officer his right to the salary attached to the office exists. Nothing short of removal from or abandonment of his office bars this right. (Gregory v. The Mayor, 113 N. Y. 416.) The view we take of this case renders it unnecessary to determine whether the power to remove an officer includes the power of suspending him. For a discussion of this question see Gregory v. The Mayor (supra), and Emmitt v. The Mayor (128 N. Y. 117), and the cases cited in Throop on Public Officers, sections 401 to 406, inclusive. The right of the plaintiff to recover depends upon whether his intestate was a public officer of the city or a mere employee of the department of public works. In this State public offices can be created only by the law-making power- the Legislature, or by some public body or board to which the power to make local laws or regulations has been delegated, pursuant to the Constitution. No such office as inspector of regulating and grading the streets in the city of New York has been created by the statutes of this State, nor by any law or ordinance of any public board or body authorized to legislate for the city in respect to its local affairs. Such an office is not mentioned in the Consolidation Act (Chap. 410, Laws of 1882), nor do we find any authority therein for the creation of such an office by any board or body existing by virtue of that act. Moreover, the evidence does not show that any body, board or officer has attempted to establish such an office. Section 54 of the Consolidation Act provides: "Every person |