measure of damages is the difference between the rental value of the mill and machinery with the power contracted for and its rental value with the power actually furnished.

The respondents urge that Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. 264, justifies the course taken by the plaintiffs in their attempt to prove damages. We think otherwise, and will consider that case further when attention shall have been called to the authorities which determine that in such cases as this the difference in rental value constitutes the proper measure of damages. The general rule is, of course, as stated by the learned counsel for the respondents, that the party injured is entitled to recover all of his damages, including gains prevented as well as losses sustained, but this rule is subject always to two conditions: First, that the damages shall be such as must have been fairly within the contemplation of the parties to the contract at the time it was made; and, second, they must be certain, not only in their nature, but as respects the cause from which they proceed, for the law wisely adopts that mode of estimating damages which is most definite and certain. In Freeman v. Clute, 3 Barb. 424, there was a contract to construct a steam engine, to be used in the process of manufacturing oil. The engine was not delivered within the time agreed upon, and damages were claimed for delay in furnishing it. The injured party urged that, in arriving at the amount of damages, there should be ascertained the amount of business which could have been done by the aid of the engine and the profits that would have accrued therefrom, but the court held that this was not a proper measure of damages; that compensation should be allowed for the loss of the use of plaintiffs' mill and their machinery, which was afterwards interpreted to mean the fair rent or hire of the mill and machinery. In Griffin v. Colver, 16 N. Y. 489, the defendant failed to deliver on a certain day, as he had contracted to do, a steam engine to be used in driving a planing mill and its machinery. It was held that the ordinary rent or hire which could have been obtained for the use of the machinery, the operation of which was suspended for want of the steam engine, constituted a proper measure of damages, and the court, through Judge Selden, said: "The rent of a mill or other similar property, the price which should be paid for the charter of a steamboat, or the use of machinery, etc., are not only susceptible of more exact and definite proof, but in a majority of cases would, I think, be found to be a more accurate measure of the damages actually sustained in the class of cases referred to, considering the contingencies and hazards attending the prosecution of most kinds of business, than any estimate of anticipated profits; just as the ordinary rate of interest is upon the whole a more accurate measure of the damages sustained in consequence of the nonpayment of a debt than any speculative profit which the creditor might expect to realize from the use of the money." So, in Rogers v.

Bemus, 69 Pa. St. 432, the plaintiff agreed to erect a sawmill within a specified time. He failed to do so, and in an action on the contract it was held that the defendant's damages were the rental value of the mill from the time fixed in the contract for its completion until the mill was completed; that he was not entitled to probable profits which might have re sulted from the manufacture of lumber, because too remote, contingent, and speculative. Pennypacker v. Jones, 106 Pa. St. 237, was a case where the plaintiffs, who owned and operated a flour mill in Philadelphia, entered into a contract with the defendants, by the terms of which the defendants were to place in their mill, within the specified time, machinery of a certain capacity to make flour of a high grade. The machines, when finished, were found not to make a high grade of flour, and to be incapable of producing the stipulated number of barrels per day. In an action for damages by the plaintiffs for breach of contract, it was held that loss of possible profits which might have been made if the mill had been run properly was not a proper subject of damages, for the reason that such damages were too remote and speculative. Mr. Justice Green, in delivering the opinion of the court, said: "But, when a machinist furnishes machinery to a millowner, it is no part of his engagement that a profitable business shall be carried on with the machinery furnished. Of course, if it is defective, he is responsible for the damage resulting directly from such defect; but that is a very different thing from the uncertain, remote, and speculative profits which may or may not be made in the business to be done." Cassidy v. Le Fevre, 45 N. Y. 562, is a wellconsidered case, which has often, and very recently together with Griffin v. Colver, supra, been cited with approval in this state. There the defendant purchased from the plaintiff an engine, boilers, and other machinery. The agreement provided that the engine and boilers should be of the best material and workmanship and in perfect running order. After the delivery, the boilers were found to be defective. One of them collapsed at the first trial, and was rendered useless. The defects in the boilers were subsequently supplied by the plaintiff, and in an action for the purchase price it was held that the defendant was entitled to recoup the damages sustained. The defendant gave, however, no evidence of the value of the use or hire of the machinery which stood still during the time the boilers were being repaired, but, instead, gave evidence to show how much more and how much better cloth he could have made during the time if he had had the use of the boilers. The referee found that the plaintiff was not liable for these latter damages, and judgment was given upon this report for the plaintiff for the purchase price and interest. In considering the claim of the defendant to recover the increased earnings which might have been obtained with aid of the machinery over and above that which was actually earned without it, this court said:

"This, within well-settled principles, was not the measure of damages; they are quite too contingent; and partake of the character of unearned profits. They depend upon circumstances entirely independent of the contract, and the particular thing, the object of the contract, upon contingencies connected with and affecting the general business of the parties rather than the use and the value of the use of the engine and machinery for the time." This court further on, after commenting upon the absence of evidence from which the referee could have determined the difference in the rental value of defendant's mill and machinery with or without the steam engine and boilers, said: "Had there been such evidence, the ruling of the referee that the plaintiff was not liable to defendants for damages for the loss of the use of the engine, boilers, and other machinery would have been erroneous. But the ruling and decision was based upon the evidence and the claim as made, and was in conformity to the decision of the courts of this state, and well-settled rules as to the measure of damages in like cases." In Stamping Works v. Koehler, 45 Hun, 150, the defendants leased a manufactory to the plaintiff, with all steam power needed by the plaintiff in its business. The steam power furnished was inadequate. The court held (Presiding Justice Van Brunt writing the opinion) that the plaintiff was not entitled to recover damages for the destruction of material by reason of the unevenness of the power nor for profits which might have resulted had the power furnished been as agreed, but that a recovery for the ordinary rent or hire of the machinery during the time of this deficiency of power could have been recovered had the complaint made claim for damages on that ground. In Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209, 31 N. E. 1018, the court, after asserting the general rule that one party shall recover all the damages which has been occasioned by a breach of the contract by the other party, said: "But this rule is modified in its application by two others: The damages must flow directly and naturally from the breach of the contract, and they must be certain, both in their nature and in respect of the cause from which they proceeded. Under this latter rule, speculative, contingent, and remote damages, which cannot be directly traced to the breach complained of, are excluded. Under the former rule, such damages only are allowed as the parties may fairly be supposed when they made the contract to have contemplated as naturally following its violation,"-citing Griffin v. Colver and Cassidy v. Le Fevre, supra.

The grounds upon which is founded the general rule of excluding profits in estimating damages are (1) that in the greater number of cases such profits are too dependent upon numerous and changing contingencies to constitute a definite and trustworthy measure of damages; (2) because such loss of profits is ordinarily remote, and not the direct and immediate result of a nonfulfillment of

the contract; (3) the engagement to pay such loss of profits in cases of default in performance does not form a part of the contract, nor can it be said, from its nature and terms, that it was within the contemplation of the parties. Cases arise, however, in which loss of profits is said to be clearly within the contemplation of the parties. although not provided by the terms of the contract, and where such profits are not open to the objection of uncertainty or remoteness. An instance of the latter kind is where the contract is entered into for the purpose, in part at least, of enabling the party to fulfill a collateral agreement from which profits would arise, of the existence of which he informed the other party prior to the making of the contract. In such cases the loss of profits from the collateral agreement is clearly within the contemplation of the parties. and is not remote or speculative. No such agreement existed in this case. There was, indeed, present no fact to take it outside the general rule which declares that the measure of damages in such cases is the difference between the rental value of the mill and water power as furnished and the mill and water power as it would have been had the contract been performed. The case of Wakeman v. Manufacturing Co., supra, is relied upon by the respondents' counsel to support this judgment. Wakeman's Case was one in which the rule controlling this case could not have been made applicable,-a rule established in cases of this character, because the damages measured by it are not only within the contemplation of the parties, but are more definite and certain than would be possible by any other method of ascertaining damages. Wakeman and the W. & W. Manufacturing Company, entered into a contract by which the defendant agreed that if the plaintiffs should succeed in selling 50 of the defendant's sewing machines to one firm or party in Mexico, during a trip of their agent about to be made, for every 50 machines so sold they should have the sole agency for the selling of said machines in that locality, and the defendant agreed to furnish the machines. Plaintiffs' agent made two sales of 50 machines to persons in different localities in Mexico, under an agreement that the purchaser should be the sole agent for the sale of machines in that locality. One of the orders the defendant filled; the other it refused; and refused to fill other orders from the plaintiffs or their agents, and repudiated the contract. The defendant insisted that the only damages that the plaintiffs could recover were for a refusal to fill the orders actually given. Of course, argument was not needful to make it appear that the loss of profits on 50 machines actually sold would in no wise compensate plaintiffs for the breach of the contract. In that situation the plaintiffs undertook to show that they were prevented from making profits which were within the contemplation of the parties at the

time they made the agreement, and, as tending in that direction, they offered to prove upon the trial that, subsequent to the repudiation of the agreement, the defendant established agencies in Mexico, and a number of machines were sold through them. This evidence was excluded, and for that error the judgment was reversed, the court holding that prospective profits, so far as they could be properly proven, and which would certainly have been realized but for defend. ant's default, are allowable as damages, although the amount is uncertain, and that the evidence offered by the plaintiffs, which the court excluded, tended in that direction. But the Wakeman Case was in no wise intended to encroach upon the rule of damages applicable to cases of this character, by which is afforded a more certain and definite method of admeasuring the damages. It belongs to a diferent class, to which the rule of this case cannot be made applicable, and the doctrine of it must be limited in its application to cases that come fairly within it. The judgment should be reversed, and a new trial granted, with costs to abide the event. All Judgment reversed, etc.

concur.

CONSTITUTIONAL LAW-LOCAL ACTS-IMPROVEMENT OF HIGHWAYS.

1. While an act of the legislature which embraces all things of a certain class may be a general, and not a local, act, within the meaning of section 18 of article 3 of the constitution. although by reason of some limitation based on population, or other condition, only a particular city, or the inhabitants of a single locality, can, at the time, receive its benefits, the validity or invalidity of a statute, under said provision of the constitution, depends upon the special circumstances of the case, and, if it contains such limitations as to restrict its operation to what must always be a very limited number of specified localities, if not, in fact, one, then it is local, in the constitutional sense.

2. Laws 1897, c. 286, provides that in any town having a total population of 8,000 or more, and containing an incorporated village having a total population of not less than 8,000 and not more than 15,000, except in the county of Madison, any five or more persons owning land on a highway which extends, within the town and without the village, for at least two and a half miles, may present a petition to the Supreme court for the appointment of commissioners to widen and improve such highway or a specified part thereof, not less than two and a half miles in length, and wholly without the limits of the village. Hold, that this act is a device to evade the provisions of section 18 of article 3 of the constitution, prohibiting the legislature from passing a private or local bill for laying out or altering highways; that it is a local act, and, accordingly, unconstitutional. O'Brien, Bartlett, and Martin, JJ., dissenting. Appeal from supreme court, appellate division. Second department.

Application of Herman Henneberger and others for appointment of commissioners to widen a highway in the town of New Ro

chelle. From an order of the appellate division (49 N. Y. Supp. 230) reversing an order appointing commissioners, petitioner appeals. Affirmed.

Isaac N. Mills, for appellants. Chas. H. & J. Addison Young, for respondents.

GRAY, J. This is an appeal from an order of the appellate division, in the Second department, reversing an order made at the special term, which granted an application of the petitioners for the appointment of commissioners to widen and improve a portion of a highway in the town of New Rochelle.

The application was opposed by the town of New Rochelle, the village of New Rochelle, and a taxpayer of the town, upon the ground that the act under which the proceeding was instituted was unconstitutional. The claim of its unconstitutionality was based upon the repugnancy of its provisions to section 18 of article 3, and, as well, to section 10 of article 8 of the constitution of the state. The act is contained in chapter 286 of the Laws of 1897, and is entitled "An act to provide for the widening and improving of highways in towns having a total population of eight thousand or more inhabitants and containing an incorporated village having a total population of not less than eight thousand and not more than fifteen thousand inhabitants." Section 1, which provides for the appointment of the commissioners, reads, so far as material, as follows:

"Section 1. In any town, having a total population of eight thousand or more inhabitants and containing an incorporated village having a total population of not less than eight thousand and not more than fifteen thousand inhabitants, except in the county of Madison, any five or more persons owning lands adjoining or abutting on any highway, which extends within the limits of such town and without the limits of such incorporated village for a distance of at least two and onehalf miles, may present to the supreme court, at a special term thereof to be held in the county containing said town, a petition for the appointment of three commissioners for the purpose of widening and improving such highway or a certain specified portion thereof not less than two miles and a half in length, such portion being wholly without the limits of such incorporated village."

It is conceded by the appellants that if this is a local act, in the constitutional sense, it violates section 18 of article 3 of the constitution, which prohibits the legislature from passing a private or local bill for laying out or altering highways. I think that the extraordinary provisions of this act so confine its operation as to make it a local measure, applicable to a limited territory, which is all but identified by the restrictions of section 1. If this act can be upheld as a valid exercise of legislative power, it would go far towards frustrating the intention of the peo

ple of the state, and it becomes very easy to evade the constitutional inhibition.

This section of the constitution was added by way of amendment in 1874. Its effect was to deprive the legislature of its power to pass laws laying out or altering highways, and to remit that power to the local authorities, as being a governmental or administrative function, which concerned the people of the locality. People v. Board of Sup'rs of Queens Co., 112 N. Y. 588, 20 N. E. 549; Matter of Burns, 155 N. Y. 28, 49 N. E. 246. The legislature might pass general laws providing for the cases enumerated in the section, and, by section 27 of article 3, "shall, by general laws, confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may from time to time deem expedient." It is manifest that the purpose of the people, with respect to local governmental measures and to the matters specified in section 18, was to restrict the legislative power and to confine its exercise to the passage of such general statutes as the welfare of the body politic, as a whole, might be deemed to require. The imposition of such a constitutional restriction upon the legislative power was regarded as necessary, in order to put an end to flagrant abuses in its exercise. The provision expressed a fundamental idea in our popular form of government, namely, to commit to local bodies the discharge of functions which can be as well, if not better, discharged by them. For a variety of reasons, the state legislature should not be concerned with the administration of those local affairs as to which there exist local legislative bodies, whose acts, motived by the needs of the citizens, are more sure to be pure and efficient. Notwithstanding the existence of general laws, the statute books were being filled by acts operating upon particular and sectional interests. The abuse became very evident in legislation affecting local highways, as to which there was no justification for the action of the legislature, in the presence of a general statutory system of highway laws. Whether highways should be laid out or altered are local questions which should be determined by the local authorities, not only with greater political propriety, but in the better interest of the portion of the public to be affected. That the present act is expressed in general terms is not, and should not be, decisive of the question of its constitutionality. That is a question which must be decided, not by the letter, but by the spirit, of the act. There is, of course, the difficulty of laying down any definite rule by which the question of whether a law is local or general may be solved. It was said by Andrews, J., in Ferguson v. Ross, 126 N. Y., at page 464, 27 N. E. 955, that "the fact that an act operates only upon a limited area, or upon persons within a specified locality and not generally throughout

ces.

the state, is, in most cases, a reasonably accurate test by which to determine whether the act is general or local." It was observed in that case, as it had been by Judge Earl, in People v. Newburgh & S. Plank Road Co., 86 N. Y., at page 6, that each case must be determined upon its special circumstanIt has been held, with respect to the operation of section 18, that an act which embraces all things of a certain class is a general, and not a local, act, although, by reason of some limitation, based on population or other condition, only a particular city, or the inhabitants of a single locality, can, at the time, receive its benefits. Ferguson v. Ross, supra; In re Church, 92 N. Y. 1. That is a rule the justice of which need not now be gainsaid. It rather serves to emphasize the principle that, in passing upon a statute, its validity or invalidity, under the constitutional provision, depends upon the special cir cumstances of the case; which, therefore. can constitute no precedent, except and unless those circumstances are seen to exist in, and, therefore, to vitiate, another case.

Although this act is drawn in general terms, if its provisions are such in number and in character as unduly, with reference to the constitutional purpose, to restrict its operation, and, to all intents, to confine it to a particular locality, then, I think, it comes as much under condemnation as though it designated the locality by name. While an act might be general, if it affected all towns of a class, and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification, if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense. By the title of this act, its operation is limited to towns having a total population of 8,000 or more inhabitants, and containing an incorporated village having a total popu lation of not less than 8,000 and not more than 15,000 inhabitants. Passing over any possible criticism upon the effect of the limitations in this title, and coming to the body of the act, we find there a very remarkable combination of restrictions, and such as, if not by the process of exclusion serving to identify the particular part of the state to be affected by the law, certainly very markedly localize its operation. There are, at least, seven conditions in the act, all of which must be met, in order that it shall become operative. The town must have a total population of 8,000 or more inhabitants. It must contain a village which must be incorporated, and whose population shall not be less than 8,000 and not more than 15,000; but that village must not be in the county of Madison. The highway must be one which extends within the town limits, but without the village limits, and for a distance of at

least two miles and a half. The improvement may only be as to a portion of the highway not less than two miles and a half in length, lying without the village limits. This enumeration of restrictions is not only pretty extensive, but very peculiar, and the most casual view suggests a local rather than a general operation for the law. The provisions of the act may not extend to highways in incorporated villages, contained in such towns as are specified in the act, nor to all highways contained in the described towns. To quote the language of Mr. Justice Woodward in the opinion delivered by him in the appellate division: "Any highway of less than two miles and a half in length between the boundaries of an incorporated village, containing at least eight thousand inhabitants, in a township of at least eight thousand inhabitants, and the boundaries of such township, could not be improved under the operation of this statute. The whole operation of the statute is thus confined to the few townships in which there is a highway two and one-half miles long, outside of the limits of an incorporated village of at least eight thousand inhabitants, and, in any event, it cannot extend beyond the limits of the town in which it is put in operation, thus confining its operation to a very limited number of specified localities." The exception of the county of Madison singularly emphasizes an intention to guard against a possible general operation of the act. In my opinion, to call this act a general law would be absurd. It is a device to evade a wholesome constitutional provision, so transparent as to be clear to the most ordinary intelligence. Enumeration of restrictions upon the application of the act has reached a point where it ceases to be classification, and, as Mr. Justice Cullen well suggested, serves the purpose of identification.

But it is said that the decision in Re Church, supra, justifies this kind of legislation. I do not think so, and a comparison of the act which was in question in that case with the present act clearly shows fundamental differences which distinguish them. The title of the act of 1875 was "An act to confer on boards of supervisors further powers of local legislation and administration, and to regulate the compensation of supervisors." Its provisions were applicable "in any county containing an incorporated city of one hundred thousand inhabitants and upward, when any territory within such county and beyond the limits of such city has been mapped out into streets and avenues, in pursuance of law." Acts 1875, p. 556.

What comparison does that act, with its provisions permitting of so general an application, bear to the present act? The act in its application to the counties of the state, while, possibly enough, for the moment, available to one, contemplated a condition of things which, not unreasonably, might be considered as possible generally, where a

city had grown to the required size in population and the territory beyond its limits should be mapped out for avenues and streets. The act confers full powers upon the boards of supervisors, while this act deprives the local authorities of their vested and appropriate powers, and the only resemblance between the acts lies in the territorial restriction. But the former act embodied a general idea concerning the extension of the limits of such cities by the laying out of highways. There was an appreciable public purpose, the accomplishment of which was left to local officers. This legislation takes away from the local authorities the power to perform the work through their own officers, or to supervise the expenditure of the moneys for which the town is to become obligated. No case can be found to compare with this attempt to interfere with the self-government of localities. Our attention is directed to a number of acts, which have been passed by the legislature, where their operation was made dependent upon limitations by population, and which, it is urged, would be endangered by a decision that the act in question was local, and therefore unconstitutional. I am not unmindful of this feature of the case. It is important, because it is undoubtedly true that the constitutional provision under consideration has somewhat suffered at the hands of the legislature in efforts to evade its effect. So far as they have gone in a healthful and reasonably public direction, I recognize that it is too late to insist upon strict construction, and that we must take up that work, at the present time, with a liberal view of the law and the situation. I admit that where there has been a practical construction placed by the representatives of the people upon the constitutional provision, and where great public works in localities have been carried out through the assistance of large loans and investments of moneys, advanced upon the faith of the validity of the legislation which authorized them, it would not do for the courts to construe in too strict or illiberal a sense. But while the legislature, as previously suggested, has gone very far in the enactment of laws containing territorial restrictions upon their operations, I find none, and none are pointed out, with so many as we find in the present act. In so far as acts have been made, by their terms, applicable to counties, cities, towns, or villages, according to their limits of population, or to the cases of counties or towns, which adjoin cities of a certain population, although, by strict construction, they might be deemed to contravene the section of the constitution, they will be saved from condemnation by the rule of construction which determines their validity as general laws upon a consideration of the special circumstances, and declines to view them as only local, because, by reason of a limitation based on population, or some condition having reference to population, but