The action is brought to recover damages for a breach of contract under which the defendant agreed to employ the plaintiff as a traveling salesman of pianos for one year from the 1st day of January, 1897. The contract has been construed by this court on an appeal from a judgment dismissing the complaint (49 App. Div. 869). It was there held that the contract obligated the defendant to permit the plaintiff to travel for at least eight months of the period and to pay him seven dollars per day during that «time in addition to Ids commission of five dollars on each piano sold. That decision, though made by a divided court, must be regarded as the law of this case and the question may not be re-examined by us for the purpose of either affirming or overruling it.
On behalf of the plaintiff evidence was introduced tending to show that the defendant violated the contract in refusing to permit the plaintiff to travel for eight months. The plaintiff alleges performance and readiness to perform on liis part. The defendant denies these allegations and specifically alleges performance and *311readiness and willingness on her part, and avers that the plaintiff has refused and neglected to perform on his part. The defendant, under these allegations, gave evidence tending to show that instead of her violating the contract in refusing to permit- plaintiff to go upon the road, he violated it by refusing to travel unless she advanced to him twenty dollars a week. The plaintiff denied this, but it presented a question of fact as to which of the parties was guilty of a breach of the contract.
The court erroneously ruled that the only question for the jury was one of damages, and likewise erroneously declined defendant’s specific request to go to the jury upon the question as to whether she was guilty of a breach of the contract. To these rulings exceptions were taken.
Reversible error was also committed in the reception of illegal evidence relating to the question of damages. The plaintiff, after testifying that he sold sixty-five pianos for the spring trade while on the road for the defendant and that the spring trade was generally about half the volume of the fall trade, was permitted to answer the question as to what were his prospects for selling pianos in the fall under defendant’s objection and exception that it was incompetent, immaterial, irrelevant and speculative. He answered that he thought he had brilliant prospects for the fall. He was then asked, “ can you tell with reasonable certainty from your experience as a salesman of pianos, and from your specific experience while with Miss Baumeister how much commission you might have been able to earn in the Fall of that year had you been allowed to travel for the allotted contract period ? ” Defendant’s counsel objected to this question as irrelevant, incompetent, immaterial and speculative. The objection was overruled, defendant excepted and the plaintiff answered, “I was figuring on selling about three hundred pianos that Fall, or even more, but I thought three hundred, with the start I had made in the Spring ; I had 35 new customers, and I thought I would sell three hundred, that is at least. Some would buy 30 or 40, and others 3 or 4, and I counted on 300 for that season.” The defendant then moved to strike this answer •out as being speculative, irrelevant, immaterial and incompetent. 'This motion was denied and an exception taken. The evidence was clearly incompetent. It was the province of the jury and not of *312the plaintiff to estimate the loss he sustained by being deprived of an opportunity of making commissions on the sales of pianos. The-jury were authorized to determine that question by the aid of such, facts as the plaintiff might be able to show that would tend to-indicate the probabilities; but opinion evidence on the subject was. incompetent. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 217.)
Other incompetent opinion evidence was received upon the trial. The rules of law with reference to the character of evidence admissible in such cases have been so well and fully considered in theWakeman Case (supra) that it is unnecessary to reiterate them here. Upon the new trial, which becomes necessary, the other-objectionable evidence may be eliminated, and we, therefore, deem it unnecessary to consider at length the various exceptions to the reception of testimony of this character.
The judgment and order should be reversed and new trial granted, with costs to appellant to abide the event.
Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred"..
Judgment reversed, new trial ordered, costs to appellant to abide event.