(dissenting.) After a chequered career of nearly 30 years’ controversy in the courts, the case has terminated at last in a judgment in favor of the respondents for a sum very little short of a million dollars. Except under compulsion of obvious and essential error, I cannot consent, by reversal of the judgment, to start the cause again on a course of doubtful and indefinite litigation, from which, by the death and disappearance of witnesses, it is not likely to issue in a result as consistent with the interests of justice as the conclusion now before us. So long ago as 1875 the court of appeals settled the principles upon which, if the respondents be entitled to a recovery, the amount of their indemnity should be adjusted, namely, a credit for the money actually earned in performance of the contract, and an allowance for the money they would have earned but for the wrongful repudiation of the contract. In conformity with this decision, the referee determined the sum for which he directed judgment. That the appellant established no defense to the action, and that the respondents were entitled to a judgment, is a result from which, in the opinion of my brethren, there is no possible escape. But, while affirming the judgment in so far as it awards compensation to the respondents for actual earnings under the contract, they reverse it as to the allowance of damages for breach of the contract by the appellant; and they subject the respondents to the hard alternative of renouncing the substantial benefit of their judgment, or else submitting to another trial of their claim under circumstances which preclude the possibility of establishing it by attainable evidence. Ordinarily, upon reversal of a judgment, whether for error in law or in fact, the respondent, if he have a case, is at no loss to repair the defect which caused his miscarriage; but as, in the present instance, the respondents are defeated for lack of evidence, and as by lapse of time other evidence is by necessity unavailable, the new trial awarded them is obviously an illusory advantage. And yet, if the judgment be invalid, we have no choice but to reverse it. The measure of damages to the respondents for the breach of the contract by the appellant “is the difference between the contract price and what it would have cost to perform the contract.” Devlin v. Mayor, etc., 63 N. Y. 9. It is not denied that the referee duly observed the rule of damages thus authoritatively propounded, but the position in the prevailing opinion is that his conclusion as to the amount of damages is without the support of legal evidence. Conceding, for argument, that evidence of opinion and speculation by the witnesses as to the amount of damages be in the case, still the error in its admission is obviated by the explicit assurance of the referee that he excluded it from consideration. Only prejudicial error invalidates a judgment, and evidence disregarded cannot possibly prej*900udice. But, my associates say, rejecting the illegal evidence, the conclusion of the referee stands upon no proof. I am clearly of the contrary opinion. The sum to which the respondents are entitled being the difference between the contract price and the expense of the work, the question before the referee was, what would have been the amount of that expense? The conclusion that nothing in the record authorizes an answer to the inquiry involves, in my judgment, a misconception of the evidence. On the contrary, the cost of the work is shown by the testimony of witnesses who give not a surmise, nor an estimate, but positive proof of the fact from their own personal knowledge. Men of skill and experience who superintended the performance of the contract, deposing from recollection and from memoranda of expenditures made at the time under their supervision, detail minutely the cost of the work for each and every ward of the city. The cost of the work was reduced in proportion to the value of the garbage and ashes reserved as a perquisite of the respondents, and that value is made apparent by indisputably competent testimony. Opinion as to the value of the contract may have been inadmissible, (Reed v. McConnell, 101 N. Y. 270, 4 N. E. Rep. 718,) but the actual profits upon work under the contract is not the subject of speculation but of knowledge; and to such profits, as a fact, competent testimony was adduced. Disregarding, however, this class of evidence, as the referee reports that he did, and still his reference as to the amount of damages stands upon the solid ground of legal proof. “A person violating a contract should not be permitted entirely to escape liability because the amount of the damage he has caused is uncertain. Prospective profits, so far as they can properly be proved, and which would certainly have been realized but for the defendant’s default, are allowable as damages, although the amount is uncertain.” Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. Rep. 264. With this rule for guidance, I am conducted to a secure and satisfactory conclusion. By the testimony of witnesses speaking from knowledge and to facts, the damages found by the referee are sufficiently shown, and my unhesitating conviction is that his decision is so supported by the evidence as to preclude this court from disturbing it. Baird v. Mayor, etc., 96 N. Y. 567; Batjeman v. Railroad Co., (Com. Pl. N. Y.) 20 N. Y. Supp. 628; Aldridge v. Aldridge, 120 N. Y. 614, 617, 24 N. E. Rep. 1022.
The judgment should be affirmed, with costs.