While I concur-in the result reached by Mr. Justice Hooker in this, case, I cannot agree with his criticism upon the opinion of Mr. Justice Cullen in Miller v. King (21 App. Div. 192). The case cited was many times before the General Term and this court. I do not understand that a discussion or remark by a judge in the course of a judicial opinion is to be deemed obiter when it is germane to the point under discussion, even though it may not be abso*462lately essential to the decision. When the case of Miller v. King-came up for consideration it presented two important questions: (1) Whether the Erie Railroad Company was liable for tort, or merely for breach of contract; and (2) if only upon the contract to carry, what was the measure of damages. In speaking for the court, Mr. Justice Cullen answered these questions by holding (1) that the railroad’s failure to carry the plaintiff as a passenger in accordance with its agreement did not render it liable in tort, but made it responsible solely for a breach of its contract; and (2) that the damages recoverable on account of such breach were not merely nominal. It was entirely proper to express an opinion on this second point in order to guide the trial court upon the new trial which the Appellate Division ordered, and also because counsel for the defendant insisted that nominal damages only were recoverable.
The subsequent history of Miller v. King (see 166 N. Y. 394) shows that the case was subsequently tried upon the rule of damages stated by Mr. Justice Cullen, and the final affirmance in the Court of'Appeals must be deemed an adjudication in the court of last resort that this rule was correct. This fact alone precludes us from declaring the statement of the rule in Judge Cullen s opinion to be an obiter dictum. Furthermore, I am unable to see how the fact that the plaintiff, in a case like that at bar, is not confined to nominal damages affects the correctness of the conclusion reached by Mr, Justice Hooker herein. While it was held in Miller V. King that more than nominal damages might be recovered, it was also held that the damages were limited to the expense to which the plaintiff was put to get to his destination. This might be a large sum or might be a small sum, varying according to the distance to be traveled and the particular circumstances under which the contract was. broken; but it must be deemed substantial inasmuch as it must always be sufficient to make good to the plaintiff the pecuniary loss which he has actually suffered by reason of the defendant’s failure to keep its agreement.
I have expressed my views thus fully because I am unwilling to seem to sanction any intimation that the opinion of Judge Cullen in the Miller case is incorrect in any respect.
Judgment of the Municipal Court reversed and new trial ordered^ costs to abide the event.