I concur in the reversal of this judgment, as I think the plaintiff had established a cause of action which would entitle him to recover for the reasonable value of the services rendered by bim in presenting the play to Brady who afterwards made the contract with the defendant and produced the play. Under the original agreement, plaintiff was to have, as compensation for the services that he rendered, the right to appear, as the actor taking the part of the principal character in the play. Plaintiff, however, never produced a manager who would consent to the condition of the plaintiff acting the principal part and, therefore, he did not perform his part of the contract. The objection to the plaintiff performing in the play was made by the manager to whom the play was presented and the evidence is uncontradicted that the defendant did all he could to induce the manager to accept the play upon the conditions upon which it was first presented to him. At *697the subsequent interview, however, at which the plaintiff was induced to surrender his right to take part in the production of the play the defendant promised that if plaintiff would “ let me handle this in a businesslike way ” he would see the plaintiff at the club and would do what was right; that if the plaintiff would allow the defendant to go ahead and close up the matter that night or the next morning the defendant would meet him at the club and they would “fix things right ” and that proposition was accepted by the plaintiff. And ■ after that conversation the defendant made a contract with Brady under which the play was produced. There was no question of a broker nor were the services rendered those rendered by brokers in procuring a manager for a playwright, and I do not think the compensation that such brokers are entitled to under the custom in New York is competent evidence to determine the plaintiff’s services. Nor do I think the amount received by the defendant as royalties from the play is competent evidence. What the plaintiff was entitled to was to have the play produced with himself playing the principal part. To that condition the manager to whom he submitted the play refused to comply, and then the defendant promised that he would do what was right and would fix things right if plaintiff released him from the arrangement that they had made and to that the plaintiff agreed. I think the value of those services must be determined from the conditions that existed at the time the promise was made. Of course it would be impossible to prove what benefit the plaintiff would have derived from the opportunity to play the principal part and it is difficult to suggest any measure of damages which would be the reasonable value of the services rendered by the plaintiff for the defendant up to the time of this substituted agreement. But the subsequent success" of the play or the royalties received had no relation to the value of those services. The amount that the plaintiff is entitled to receive must be determined by the jury from the circumstances existing at the time the agreement was made for fixing the compensation for the services that had been rendered by the submission of the play to Brady and the resulting introduction of the defendant to Brady which resulted in the production of the play. Whatever plaintiff was entitled *698to recover he was entitled to recover the day after Brady made the contract with the defendant and it is the value of the services then rendered irrespective of the success or failure of the play for which the plaintiff is entitled to recover.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.