#### Morris Markowitz, Respondent, *v.*The Metropolitan Street Railway Co., Appellant.

(City Court of New York, General Term,

April, 1900.)

Negligence — Profit on a person’s own services as a measure of damages.

The profit which a boss painter, employing no capital, was making upon his own services at the time he was injured, may be shown by him as a basis for admeasuring damages for injuries which prevented his continuing his occupation.

Appeal from a judgment, entered on a verdict, in favor of plaintiff, and from an order denying a motion for a new trial.

Robinson *&*Little, for appellant.

Julius H. Cohn, for respondent.

*176O’Dwyeb, J.

The only question litigated upon the trial was the question of damages, and it is urged upon this appeal that errors were committed on the trial in the admission of testimony showing loss of profits. The complaint alleged that the plaintiff became unable to attend to his occupation and earn his usual compensation and profits. The plaintiff was a boss painter and had other men working for him, sometimes working alone. He testified that he worked himself as well as directing his men before the accident, and sometimes worked alone; that working alone he made from three dollars to fifteen dollars a day, and that as a boss painter his profit was from ten dollars to fifty dollars a week. That his busy months were May, June and July. That for the first two weeks of the month preceding the accident he made fifty dollars per week, and that he had other work down to the time of the accident and was personally working on the job on the very day of the accident. During his examination the plaintiff was asked the following questions: *“*Q. What did these profits amount to upon the average? [Objected to as incompetent, immaterial and improper, and as being too remote and speculative. Objection overruled. Exception.] Q. What did these profits amount to during your busy season; or rather say what they were in June and July of the previous year? [Objected to; overruled and exception.] A. My profit was $800. Q. Eor those two months, June and July? [The answer to this question was stricken out on motion of the defendant’s counsel.] A. Sometimes my profits were $25, sometimes $10, and sometimes $50 per week. [Defendant’s counsel objects and moves to strike out the answer. Motion denied. Exception.] Q. What did you make for these two months, June and July, previous to the accident? [Defendant’s counsel objects to this line of examination.] A. More than $700 profit for these two months, I judge; I employed between 40 and 50 men.” The court charged in relation to this item of damage: “H you believe that these injuries were sustained by the plaintiff and were caused by this collision, and that he was deterred from carrying on his business to the extent he testified to, which he says was yielding him a profit of from three to fifteen dollars per day, you have a right to allow him for such, that is, if you believe it,” and to this part of the charge the defendant excepted and now urges that the court erred in admitting this evidence. It was competent to show that the plaintiff’s business earnings had been from his own personal efforts, that *177his profits were in the nature of compensation for his personal services solely, and. upon that evidence as a basis to prove his prior earnings as an element to- be considered by the jury in the determination of the extent to which the plaintiff had suffered loss by his inability to work for two months. Prior earnings or profits may be shown as a basis upon which to admeasure damages in cases of personal injury, where the profits are the result of the injured person’s personal services. Ehrgott v. Mayor, 96 N. Y. 264, 276; Pill v. Brooklyn Heights R. R. Co., 6 Misc. Rep. 267; Thomas v. Union Railway Co., 18 App. Div. 185, 189; Walker v. Erie R. Co., 63 Barb. 260, 265, 270; McIntyre v. N. Y. C. R. R. Co., 37 N. Y. 287, 290; Grant v. City of Brooklyn, 41 Barb. 381, 384; Kessel v. Butler, 53 N. Y. 612; Nebraska City v. Campbell, 2 Black, 590; Wade v. Leroy, 20 How. (U. S.) 34; Feinstein v. Jacobs, 15 Misc. Rep. 474, 476; McNaughton v. Met. St. R. Co., 22 id. 700, 704; Hickey v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 123, 126; Grinnell v. Taylor, 85 Hun, 85, 92; affd., 155 N. Y. 653; Nash v. Sharpe, 19 Hun, 366; Schile v. Brokhahus, 80 N. Y. 620. It is clear that the present case belongs to this class of cases. No capital was here invested. The plaintiff’s earnings were the compensation to him for procuring the job upon which he and his men worked, for superintending and directing the work, for getting the labor and materials together, preparing the materials for the men, and for the actual participation in the work with brush and pail. It is immaterial that the amount of his profits varied from time to time, and it would be immaterial if the profits he was, by the accident, deprived of the opportunity to earn were uncertain in amount or incapable of an exact computation. The exceptions do not present any error and it follows that the judgment and order appealed from should be affirmed, with costs.

Hascall, J., concurs.

Judgment and order affirmed, with costs.