#### ORSOR v. METROPOLITAN CROSS-TOWN RY. CO

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Damages—Loss of Baenihgs.

In an action for personal injuries, plaintiff testified that before the accident his earnings averaged about $40 a week. On cross-examination, he stated that he had not prepared himself to testify as to his earnings, as he did not think that question would come up; that his employers paid him a share of the profits of the business for his services; but that he had not had an accounting, and did not know what the profits were. *Held,*that it was error to submit the question of loss of earnings to the jury, as it was evident that the plaintiff did not know what his earnings were.

Appeal from circuit court, Bichmond county.

Action by Eobert S. Orsor against the Metropolitan Cross-Town Eailway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Eeversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Henry Thompson, for appellant.

F. M. Brigham, for respondent.

*967BROWN, P. J.

The plaintiff was injured by being thrown from the platform of one of the defendant’s cars, on account management of the car by the driver and conductor. Upon the trial he was asked the following question: “Q. What were your average earnings during that ten months, as near as you can estimate them?” The plaintiff answered, over the defendant’s objection and exception : “I think my earnings would average about $40 a week during that ten months.” The court was asked to charge the jury that plaintiff could not recover for loss of time and business, which request was refused, and the jury were told that they might allow him, as one element of his damages, “the pecuniary loss sustained in the way of wages,” and to this charge defendant excepted, upon the ground “that it was not proven in the evidence, but left so vague and indefinite that it ought to be thrown out.” Prior to being asked the question referred to, plaintiff had testified how the injury that he received affected his ability to do the work he was engaged in prior to the accident; that at the time of the accident he had an interest in a business of one-third of the profits, which he received, not as a partner, but as compensation for his services as an employe; and that an agreement had existed for ten months preceding the accident. Before that period he had been with the same persons, having a half interest. The following question was then asked:

“By tlie Court: Q. What were your average earnings for that ten months? A. I have not prepared the earnings, as I did not think that would come up. I couldn’t tell that Q. Did you lose your pay from the time you were sick? A. I received one small amount after I was injured, but I couldn’t get out, and they objected to my drawing money.”

Upon cross-examination he testified:

“The concern I was with six years was ‘Orsor and Anderson.’ Orsor was my wife, and Anderson was his wife. They went out of business. B. Anderson took up the business then. He is the husband of the Anderson of the old firm. My arrangement with him was that I was to have one-third of the profits. I never had a settlement with Anderson, so I don’t know what the profits were for those ten months.”

The question as to the plaintiff’s earnings was admissible, and the objection was properly overruled. Ehrgott v. Mayor, 96 N. Y. 264. The plaintiff had a right to recover for his pecuniary loss caused by his inability to perform his usual work, and the question called for Ms income from his personal service, and did not involve any element of income from invested capital. In this respect the case is distinguished from Masterton v. Village of Mount Vernon, 58 N. Y. 391, and Johnson v. Railway Co., 52 Hun, 111, 4 N. Y. Supp. 848. But the jury should not have been permitted to consider tMs element of the case, for the reason that it was evident plaintiff did not know what his earnings were. He so stated in answer to the court and upon cross-examination. He was injured on February 9, 1893, and the trial took place in October, 1893. The period covered by his arrangement with Anderson was from April, 1892, to the time of the accident. It would have been entirely competent for him to have stated the amount that he had actually received during that period, but he was not asked that question, notwithstanding he *968stated that he had had no settlement with Anderson, and was not prepared to say, and could not tell, what his earnings were, he was permitted to say what he thought they would amount to, and the jury were permitted to consider that evidence as one of the elements of his damages. The evidence was insufficient to support any finding as to the plaintiff’s income, and the exception to the charge was well taken. The judgment should be reversed, and a new trial granted; costs to abide the event.