Judgment reversed on the law and complaint dismissed, with costs in all courts. Memorandum: There is no proof in the case as to the amount of the actual damage arising from plaintiff’s breach of the contract. The stipulated damage not appearing excessive or unconscionable on its face, considering the nature of the contract and all the circumstances of the case, the plaintiff should not succeed. Having made the contract for a stipulated damage, the burden was on the party seeking to repudiate the contract, the plaintiff, to show that such agreed damage is so exorbitant as to be in the nature of a penalty. The exact damage is wholly uncertain, difficult to prove, and in fact incapable of being ascertained except by conjecture. In such case a stipulated damage, within reason, is not a thing condemned by either law or equity. (Tode v. Gross, 127 N. Y. 480; Hackenheimer v. Kurtzmann, 235 id. 57; Kemp v. Knickerbocker Ice Co., 69 id. 45; Little v. Banks, 85 id. 258; 17 C. J. 940.) All concur.