■ Judgment affirmed, with costs. No opinion.
Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.; Glennon and Untermyer, JJ., dissent; dissenting opinion by Untermyer, J.
The burden was upon the plaintiffs to establish not only a breach by the defendant of its contract but also the amount of the damage caused thereby. The verdict of the jury for $190,484.91 appears to have been calculated upon the theory that the defendant in every case “ block-booked ” the plaintiff’s picture and that, had this not been done, the quota figure could have been realized. The plaintiff, however, was only able to establish “ block-booking ” in a few instances and within a limited territory, all of which combined would have amounted to an aggregate price of $31,504.35, in which the plaintiff would have been entitled to share to the extent of sixty-five per cent. The plaintiff’s damage, therefore, resulting from all the breaches of contract of which proof was offered at the trial, would only have amounted to a fraction of the amount of the verdict.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.