Misc.] Surrogate's Court, New York County, October, 1918.

script as would be comprehended within the words "established within the foreign country" as used in section 2629 of the Code. A careful consideration of the amendment leads me to believe that it ought to be held that it was the intention of the legislature in adding the words "or established" after the words "admitted to probate " to distinguish between the procedure necessary to the probate of a will as required by the laws of this state or the laws of any state or territory in the United States and the procedure required to give effect to a testamentary instrument by the laws of a foreign country, particularly one where the civil law prevails. If this inference is correct the amendment requires the issuance of ancillary letters in this state where a testamentary disposition of property made by a resident of a foreign. state has been made effective because of a compliance with the formalities prescribed by the laws of the foreign state. If the legislature did not intend to distinguish between our requirements for probate and those required by the law of many foreign states, the addition of the words " or established " would have been unnecessary, particularly in view of the fact that the word "6 probate" is used strictly only in connection with wills executed in English speaking possessions or in any of the states or territories of the United States, while the word "established " is used exclusively in connection with other foreign countries.

The very learned counsel for the objector contends, with his usual learning and acumen, that the word "established" was intended by the legislature to apply to an action or proceeding in the Supreme Court, or a similar proceeding in a court of a foreign country, and that until such a proceeding had been terminated, and the will established, this court would have no jurisdiction to issue ancillary letters. If this contention

Surrogate's Court, New York County, October, 1918. [Vol. 104.

were valid, no testamentary disposition of property, recognized as effective under the laws of France for the purpose of disposing of all of the personal property of a testator, could ever be the basis of ancillary letters in this state, unless an action had been brought to determine the validity of such testamentary disposition in a competent tribunal in France. If none of the heirs or next of kin contested the validity of such testamentary disposition, there would be no occasion for such a proceeding in a French tribunal. If, for instance, in the matter under consideration, Anna Von Wernstedt had not begun a proceeding to declare the will invalid, nothing would have been done in addition. to the proceedings which had already been taken before the president of the Civil Tribunal, and therefore, according to contention of counsel, no ancillary letters. could ever have been granted in this state. I am consequently not profoundly impressed with the reasoning of the contention that the legislature had intended by the word" established " a proceeding in a foreign state substantially similar to an action in our Supreme Court to establish a will. It seems to me, from an examination of the French Code and the record of the proceeding before the Civil Tribunal of Nice, that the will of the testatrix was "established " before that tribunal within the sensible and real meaning of the requirements of section 2629 of the Code of Civil Procedure, and that the universal legatee, to whom" envoi en possession was granted by that court is justly entitled to receive ancillary letters in this court. In view of the fact, however, that a proceeding is pending in the Civil Tribunal of Nice to determine the validity of the will, I will direct that ancillary letters issue to the applicant only upon his giving a bond in the value of the personal property of the deceased located in this state. I doubt if I can go further if all my powers

Misc.] Appellate Term, First Department, October, 1918.

as a judge are narrowly confined by the letter of statutes, as maintained in this state, and denied by the United States Supreme Court. McArthur v. Scott, 113 U. S. 399.

It is also contended on behalf of Anna Von Wernstedt that the papers submitted on the application for ancillary letters did not comply with the requirements of section 45 of the Decedent Estate Law. While there are, perhaps, minor defects in the authentication of the papers, they have been expressly waived by counsel, and irrespective of waiver I find that there has been a substantial compliance with the requirements of that section.

Decreed accordingly.

K. & R. FILM COMPANY, INC., Respondent, v. WILLIAM A. BRADY, Appellant.

(Supreme Court, Appellate Term, First Department, October, 1918.)

Damages breach of contract to furnish theatre for photo-playwhen not entitled to recover loss of prospective profits evidence.

In an action to recover damages for defendant's refusal to carry out a contract for a theatrical production, no recovery can be had for loss of prospective profits without proof of actual profits obtained under at least approximately similar conditions.

Where, in an action to recover damages for defendant's breach of a contract to furnish plaintiff a certain theatre equipped for the production of a photo play and to pay plaintiff fifty per cent of the gross profits, the evidence at the close of plaintiff's case shows that after it had expended a certain sum in preparing for the production of the film defendant informed it that he did not desire to produce any moving pictures in the theatre and that in any event he had secured another attraction

Appellate Term, First Department, October, 1918. [Vol. 104.

for the time for which he had agreed to furnish the theatre for the production of plaintiff's film, and offers no testimony, the plaintiff, while entitled to judgment for the amount expended by it in preparing to carry out its part of the contract, is not entitled to recover as damages the loss of prospective profits. While in such a case loss of prospective profits is the real measure of damages, the plaintiff is required to prove as part of its case the profits which it has lost, and so far as they are purely speculative and not susceptible of proof no recovery can be had therefor.

Finch, J., dissents.

APPEAL by defendant from a judgment entered in the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff.

Nathan Vidaver (I. Maurice Wormser, of counsel), for appellant.

O'Brien, Malevinsky & Driscoll (Arthur F. Driscoll, of counsel), for respondent.

LEHMAN, J. The plaintiff has recovered a judgment for the sum of $1,000 as damages for the breach of a contract theretofore made by the defendant whereby he agreed to furnish to the plaintiff a certain theatre in Wilmington, Del., equipped for the production of a photo play entitled "The Masque of Life," and to pay to the plaintiff fifty per cent of the gross receipts from the production of such play. The plaintiff showed that after it had expended the sum of $152.28 in preparations for the production of the film the defendant through his agent informed it that he did not desire to produce any moving pictures in the theatre and that in any event he had secured another attraction for his theatre during the time for which he had agreed to furnish the theatre for the production

Misc.] Appellate Term, First Department, October, 1918.

of the plaintiff's film. The defendant presented practically no testimony and rested upon the plaintiff's case. There is no doubt but that upon the evidence presented the plaintiff should be permitted to recover at least the amount which it had expended in preparing to carry out its part of the contract which the defendant thereafter repudiated.

The present judgment, however, is not for the sum which the plaintiff expended in preparing to perform its part of the contract, but includes a recovery for loss of prospective profits. There is no doubt in my mind that in a case of this kind loss of profits which the plaintiff would have made is the real measure of the damages which he has suffered. In order, however, to recover such damages the plaintiff is required to prove as part of its case the profits which it has lost. In so far as these profits are purely speculative and not susceptible of proof they are not the subject of recovery. Bernstein v. Meech, 130 N. Y. 354.

The amount of profits to be derived from a theatrical or moving picture performance naturally depends upon a great many different conditions, and the proof that is required must be at least sufficient to remove the question of the amount of profits which might have been realized from the realm of speculation to the realm of reason. The success of the production depends partly upon the merits of the production itself and its power of attracting an audience. It also depends, however, upon the amount of the competition which it must meet in any particular locality. It further depends upon the size and attractiveness of the theatre and upon the question of whether the particular production is calculated to attract the particular clientele which is accustomed to go to such theatre and whether the patrons of such theatre would pay the price demanded for the seats in order to see this production.