The facts have been fairly stated in the majority opinion. Furthermore, I am in agreement with the majority of this court that there was a triable issue of fact as to whether or not Wells Fargo breached its contract. However, the factual question — namely, whether timely notice to the police and the subscriber would have prevented the loss — is not one which would have warranted a new trial. My opinion in this regard is based on the record of the instant trial which demonstrates conclusively the impossibility of resolving this question.
Absent the proof that timely notice would have prevented the loss, it follows that the damages in the case at bar cannot be ascertained with any degree of certainty. At best, one could only speculate as to whether timely notice would have prevented some portion or all of the loss.
The burden of proving the extent of the damages is incapable of achievement. There is insufficient evidence by which an expert could conclude that timely notice by Wells Fargo would have limited the loss to anything less than the amount taken, or even that the very same amount of loss would have resulted. It is significant that the record of the trial contains no proof of the number of participants in the crime nor of the nature of the equipment used, with the sole exception that the burglars utilized a flatbed trailer. Absent knowledge of such factors, the experts cannot come to a reasoned conclusion as to the loss and therefore, .since the ascertaining of damages is purely speculative, it is not capable of proof i(cf. 13 N. Y. Jur., Damages, § 16, p. 439). In this case, proof of damages is inextricably intertwined with the requisite proof of Wells Fargo’s minimizing the consequences of the loss, which burden of proof plaintiff failed to meet.
*494Not only was there a failure of such proof at the first trial, but it cannot be forthcoming even at a second trial which is now being directed by a majority of my brethren.
In this posture of the case, the failure of plaintiff to establish a prima facie case mandates dismissal of the complaint (cf. Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245). Plaintiff is not entitled in this situation to the proverbial ‘ ‘ second bite at the apple ’ ’ since, as has been reiterated many times by our Court of Appeals, insufficient evidence is, in the eye of the law, no evidence (Pollock v. Pollock, 71 N. Y. 137, 153; Matter of Case, 214 N. Y. 199, 203; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241,245).
I must make one final observation. Would I have taken the position of the majority in remanding the matter for a new trial, I would not give effect to the $50 limitation of liability. The contract refers to the $50 as “liquidated damages.” If, as the majority implies, the damages are susceptible of proof, then the liquidated damages clause would be invalid since the limit would be grossly disproportionate to the damages resulting from failure to perform (cf. 14 N. Y. Jur., Damages, §155, p.5).
Accordingly, the judgment entered June 28, 1973 dismissing the complaint against Wells Fargo Alarm Services should be affirmed.
Markewich, J. P., and. Murphy, J., concur with iSteuer, J.; Lane, J., dissents in an opinion in which Lupiano, J., concurs.
Judgment, Supreme Court, New York County, entered on June 28, 1973, modified, on the law to reverse the dismissal of the complaint as against Wells Fargo Alarm Services and a new trial directed as against that defendant, with $60 costs and disbursements to- abide the event, and as so modified, affirmed. Respondent New.York ¡Telephone Company shall recover $60 costs and disbursements of the appeal from plaintiff-appellant.