and 82 New York State Reporter.

man House account were his individual property, a deposit being made of $5,000 on the day that the Hoffman House commenced business, when it had no money. There was also evidence given in regard to a transaction with the Chemical Bank, in which it was alleged that the defendant Stokes had improperly used the name of the Hoffman House in contravention of the by-laws. There is no claim whatever that any loss came to the Hoffman House on this account, as the notes were all paid by the defendant Stokes. It was also claimed upon the part of the plaintiff that the purchase by the corporation of $25,000 of its bonds held by the defendant Stokes in May, 1892, was a fraud upon the corporation, in that, at the same meeting, the semiannual dividend was passed, because the accounts of the company did not justify any dividend at that time. There were various other claims of misconduct made by the plaintiff against the defendant Stokes upon the trial, to which it is not necessary to refer upon this appeal. The evidence in the case showed that the books of the Hoffman House were correctly kept, the only possible irregularities being in connection with some of the restaurants which were run by the corporation. All the moneys drawn or used by the president were duly entered upon the books, and charged to the proper account; and the only question which could possibly be presented in any form of action was as to the propriety of certain credits which were made to the president in the way of salary and rebate upon meals. In view of the character of this action, it is necessary, in order that the defendant Stokes may be convicted of malfeasance, to show something more than the mere impropriety or unlawfulness of the act. Malfeasance is defined to be the unjust performance of some act which the party had no right or which he had contracted not to do; in other words, the performance of the act, the party being aware of the fact that the right to act did not exist.

Without considering the legal aspect of the questions which have been argued at great length in reference to these matters of meals and salary, we think the case is absolutely barren of evidence tending to show that the defendant was actuated by fraud or a corrupt motive. If he has misconceived his rights, that question can be determined in another form of action; but such misconception affords no ground for convicting him of malfeasance in office, which neces sarily involves a corrupt intent. A number of the claims made against the defendant Stokes arise from alleged personal admissions made by him to the plaintiff, which are denied by the defendant Stokes; and such denial is fortified by the proof that the books of the Hoffman House were correctly kept, and that they show all the moneys which were taken or used by the defendant Stokes. An examination and consideration of the evidence seems to show that the basis of the charge lies in inference, which inference is not the only one that can be drawn from the transactions proven. The court below, having considered the evidence, having heard the witnesses testify where questions of conflict of testimony were presented, was better able to determine the question of credibility than is this court from reading the record. But, even upon a consideration of the

evidence contained in the record, there does not seem to be any preponderance of proof upon the part of the plaintiff showing any corrupt intent upon the part of the defendant Stokes in his management of the affairs of the corporation of which he was president.

We think, therefore, that the court below was justified in dismissing the complaint, and the judgment appealed from should be affirmed, with costs.

PATTERSON, WILLIAMS, and O'BRIEN, JJ., concur. INGRAHAM, J., not voting.

DOWNING v. DOWNING.

(Supreme Court, Appellate Division, First Department. December 31, 1897.) DIVORCE-TEMPORARY ALIMONY.

To support a plaintiff's motion for alimony and counsel fees pending an action for absolute divorce, it is essential to furnish some evidence tending to show a reasonable ground for commencing the action, and reasonable probability of success in establishing the matters charged. Mere allegations based on information and belief, with nothing to show the source of information or grounds of belief, will not suffice.

Appeal from special term.

Action by Maud Downing against John J. Downing. From an order directing payment of alimony and counsel fees, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ.

G. A. Moses, for appellant.

G. A. Burgess, for respondent.

PER CURIAM. This action was brought to procure an absolute divorce against the defendant. The complaint had been served, but at the time of the making of the motion in question the time to answer had not expired. All the allegations constituting the ground of divorce in the complaint are upon information and belief, and this motion was based upon a petition and the complaint. The defendant, answering the motion, filed an affidavit denying absolutely the charges of adultery contained in the complaint, and no proofs whatever tending to show the sources of information or the grounds of belief of the plaintiff were presented to the court. We think, under these circumstances, the plaintiff's motion should have been denied. In aid of her application she should have exhibited to the court some evidence tending to show that there was a reasonable ground for her commencing the action, and that there was a reasonable probability that she might succeed in establishing her charges. The sole allegation, as already stated, in regard to the adultery of the defendant, is made by the plaintiff upon information and belief, with nothing whatever to show that she had any reasonable ground for any such belief.

The order should be reversed, and the motion denied, without costs, with leave to renew upon further proofs.

and 82 New York State Reporter.

KELSO v. MARSHALL.

(Supreme Court, Appellate Division, First Department. December 31, 1897.)

1. SALE-BREACH OF CONTRACT-DAMAGES.

Where, upon breach by a purchaser of a contract to purchase and pay for goods to be manufactured by the other party, it is impracticable to estab lish a market value, the measure of damages is the difference between the cost of production and the agreed price.

2. SAME EVIDENCE OF MARKET VALUE.

In such a case, where the quantity of goods agreed to be manufactured is large, the mere fact that a small portion thereof might be peddled out at given prices is no criterion of market value of the whole.

Appeal from judgment on report of referee.

Action by Walter I. Kelso against Morgan Marshall. From so much of a judgment entered on report of referee as awarded nominal damages to plaintiff and costs to defendant, plaintiff appeals. versed.

Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

F. E. Parker, for appellant.

G. M. Leventritt, for respondent.

PATTERSON, J. This action was brought to recover damages for the breach of a contract originally made in April, 1895, between the defendant and the plaintiff, by which the defendant agreed to purchase and pay for cigarettes to be manufactured by the plaintiff. The agreement was subsequently modified, and by that modification the defendant agreed to receive and pay for 50,000 cigarettes on the fourth Monday of each month from June, 1895, to April, 1896, inclusive. On the 17th of October, 1895, the defendant refused to accept any further deliveries under the contract, and placed his refusal so to do upon the allegation that certain representations made by the plaintiff at the time the contract was originally entered into were untrue. The referee found that no false representations were made by the plaintiff, and that there was a breach of the contract by the defendant, but that the plaintiff was entitled only to nominal damages. The sole question presented for consideration here relates to the correctness of the referee's decision respecting such damages. The general rule is not controverted that in an action for the breach of a contract of the character of that made between these parties the measure of damages ordinarily is the difference between the contract price and the market value, if there were a market value. The referee held that rule to be applicable, and found that upon the evidence it appeared there was a market value for these goods, and that the plaintiff could have sold the 25,000 cigarettes tendered in October at a price equal to or exceed ing the contract price. The act of the defendant in refusing to take any further deliveries upon the ground above stated put an end to any obligation on the part of the plaintiff to make any tenders after October. The cause of action was for a breach of the whole contract, and the plaintiff would be entitled to recover whatever

damages that breach occasioned. The question of value did not necessarily relate merely to the installment deliverable in October; but, even confining its consideration to the goods deliverable in that month, the referee's determination upon the question now before us was incorrect. The evidence shows that there was no market for cigarettes of the plaintiff's manufacture, in large quantities. There is some evidence to show that the plaintiff, by peddling out cigarettes at clubs and hotels and to small dealers, might have received for some quantities prices equivalent to those the defendant agreed to pay; but there is nothing to show that all of the cigarettes to be manufactured under this contract could have been sold, even in the way indicated. The condition of the proof brought the case within the decision in Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, where, under somewhat similar circumstances, it was held that the proper measure of damages was the difference between the contract price and the cost of production. In a case like this, the price at which a small portion of a large quantity of goods manufactured expressly to fill a contract could be sold is no criterion of market value of the whole. The reasoning of the court in the case cited is quite applicable to this. It is not shown that a market could have been found for the large quantities of cigarettes provided for in this contract. It was not shown that the manufacturer could place all that were to be manufactured under the contract on the market, and there was evidence to show that the goods would deteriorate after being kept for a few months. The only measure of damages that would furnish proper indemnity to the plaintiff in this case for the breach of the contract was the one established in the case cited.

The ruling of the referee was wrong, and the judgment must be reversed, and a new trial ordered before another referee, with costs to appellant to abide the event. All concur.

BAUER v. LYONS.

(Supreme Court, Appellate Division, Second Department. December 31, 1897.) VICIOUS DOGS-EVIDENCE-NOTICE.

In an action to recover damages for injuries inflicted by dogs owned by defendant, and which, without apparent cause, attacked and bit the plaintiff, evidence tending to prove that the same dogs had, a short time before. attacked and bitten another person, and that the defendant had been advised thereof, is sufficient to require the submission to the jury of the question whether defendant was chargeable with such notice of the vicious disposition of the dogs as to render him liable to the plaintiff for suffering them to run at large.

Appeal from trial term, Kings county.

Action by John Bauer against James Lyons. From a judgment of dismissal, and from an order denying a new trial, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and CULLEN, BRADLEY, BARTLETT, and HATCH, JJ.

and 82 New York State Reporter.

Richard A. Rendich. for appellant.

Baldwin F. Strauss and Joseph T. Griffin, for respondent.

BRADLEY, J. The plaintiff, having been bitten by the defendant's dogs, sought by this action to recover for the injuries resulting to him from that cause. The plaintiff was in the service of the defendant, in whose house he resided; and, as he was proceeding on his way from the house to the place where he was to work, seven or eight dogs belonging to the defendant came from their kennel, and attacked the plaintiff, threw him down, and bit him in such manner as to do him considerable injury. These were St. Bernard dogs, about 16 months old, and by some of the witnesses are called puppies. No cause appears for the attack made by them upon the plaintiff other than that attributable to their vicious propensity. But the fact that this attack on the plaintiff was made by the dogs was not alone sufficient to charge the defendant with liabilitv. For that purpose it was essential that he had, or was chargeable with, notice that the dogs were vicious. In support of the charge of scienter, evidence was given tending to prove that these dogs had, about two weeks prior to the time of this occurrence, attacked and bitten another person, and that the defendant had been advised of it. This was sufficient to require the submission of the question to the jury whether the defendant was chargeable with such notice of the vicious disposition of the dogs as to render him liable to the plaintiff for suffering them to run at large. Buckley v. Leonard, 4 Denio, 500; Caldwell v. Snook, 35 Hun, 73; Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695. The view of the trial court was that the dogs which made the attack upon the plaintiff were not identified as those by which the other person had been bitten. A witness testified that they were the same dogs; that he saw them when they were engaged in the attack upon the plaintiff; that his attention was called to the occasion when the other person was bitten; and that, while he did not see the dogs in the act of biting him, he did then see the dogs in front of him, near the place where he was bitten; that they were the same ones that made the attack on the plaintiff; and that no other dogs were there at the time. His evidence also was to the effect that he was at work for the defendant at the time of these occurrences, and knew these dogs. The evidence was sufficient to present for the consideration of the jury the question of fact whether the dogs were the same in both instances, and, consequently, whether the defendant was or was not chargeable with liability for the injury to the plaintiff.

The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.