FIRST DEPARTMENT, MARCH TERM, 1875. plaintiff, and afterward failed to perform the agreement. For that failure the plaintiff was entitled to recover. And the extent of that right is the only point presented by the present appeal. The contract was made by telegraph, and no substantial difference exists between the statement made of it in the complaint, and the nature of it as the dispatches exhibit it. In the complaint it was alleged, that, in consideration that the plaintiff would allow the defendant to act and produce the play, and would provide the manuscript and scene plots of such play, he contracted and agreed to produce it, and act and perform the same on the seventh day of May, 1870, and pay the plaintiff the sum of twenty dollars for each and every time the piece should be produced and acted at Selwyn's theater in Boston; and that he further contracted to produce upon the stage, and publicly represent the play within a reasonable time after receiving the manuscript and scene plots. The plaintiff then avers that he accepted the contract and agreement, so offered and made, and performed on his part, but that the defendant refused to produce the play, and claims damages for such non-performance. By the dispatch sent the plaintiff from the defendant's agent, he was asked: "What are your terms for Fernande? Can I produce it May seventh?" To this the plaintiff replied: "Twenty dollars per night. You can announce it for May seventh; if you conclude, will send scene plots to-night. Answer." The answer was returned: "Agreed to terms; piece announced for May seventh; send manuscript and plots immediately." There was nothing in the correspondence by letter, or in the other evidence given, changing or extending these terms. Both the allegations contained in the complaint, and the dispatches which passed between the plaintiff and the defendant's agent, showed that a contract was made between the parties. But it was not one for any definite or indefinite number of nights; it was, on the contrary, only for the evening of the seventh of May, or, according to the complaint, for some occasion within a reasonable time after the receipt of the manuscript and scene plots. In either case, but one production, or exhibition, of the play was agreed upon. And that was all that the plaintiff could positively require from the defendant for the purpose of performing the agreement made. He undoubtedly expected, and that may have been the anticipation of the defendant's agent, that the FIRST DEPARTMENT, MARCH TERM, 1875. play would be continued after the first exhibition of it. But there is a very marked distinction between a mere expectation and the obligation imposed by a contract. The former is contingent and uncertain, while the latter is fixed and definite. The defendant did not agree to produce it on more than one night, and the plaintiff insisted upon no such agreement. That was left optional — dependent upon the success of the first production and the subsequent assent of the parties. If the play had been once produced, this court, nor no other, could say that the defendant would have been inclined to produce it again. That remained uncertain, and the parties had designedly left it in that condition by the terms they used in making their agreement. Under this state of the case, the plaintiff simply lost, by the failure to produce the play, what the defendant agreed to pay for what he had bound himself to do; and that was the price of one production. He may have lost more, but that cannot be affirmed with anything like a reasonable degree of certainty. The probability that he did, was too slight to render it the proper subject of compensation by way of damages. The law allows their recovery only when they appear to be the necessary, as well as natural results of the act complained of,* and they cannot be allowed as the consequences of the omission of an act which the party was at liberty to perform or not, by the terms used in making the agreement. That was the state in which the proof' left the present case, as to all the nights beyond the first. The defendant was not asked to bind himself beyond the one night expressly mentioned, and neither his agent nor himself used any terms from which it could be inferred that it was intended that he should enter into any such obligation. The court should therefore have charged, as the defendant requested, that the damages were limited to the sum of twenty dollars. The exception to the refusal to do so was well taken. The judgment and order should be reversed, and a new trial ordered, with costs to abide the event. BRADY, J., concurred. Judgment reversed and new trial ordered, costs to abide event. *2 Greenleaf on Ev. (5th ed.), § 254; Hamilton v. McPherson, 28 N. Y., 72 Newell v. Wheeler, 4 Robertson, 253. FIRST DEPARTMENT, MARCH TERM, 1875. 3 680 32ap 59 DANIEL COLLINS, RESPONDENT, V. THE MAYOR, ETC., Section 11, chap. 876, Laws of 1869 — “new office" within meaning of - power of On the 7th of February, 1870, the common council of the city of New York Semble, that the true test to distinguish officers from simple servants or employes, APPEAL from a judgment in favor of the plaintiff, entered on a verdict directed by the court. D. J. Dean, for the appellants. W. C. Trull, for the respondent. DAVIS, P. J.: This action is brought by the plaintiff to recover his salary, as eighth assistant clerk of the board of aldermen, for the months of September, October, November, December, 1871, and part of January, 1872. On the 7th day of February, 1870, the common council adopted, and the mayor, on the same day, approved, the following resolution : 66 Resolved, That the clerk of the common council be, and he is hereby authorized and empowered to appoint an additional clerk in his office, to be denominated the eighth assistant clerk of the board of aldermen, who shall perform such duties as may be assigned him by the said clerk of the common council; the salary of said clerk to be $2,000 per annum, payable monthly." Under this resolution the clerk of the common council appointed the plaintiff, who took the official oath, and entered upon the duties of his office, and continued to discharge them till the 16th day of * * FIRST DEPARTMENT, MARCH TERM, 1875. His January, 1872. His salary for the last four and a half months had not been paid. The only question made, is, whether the common council had power to authorize the appointment of an additional clerk. The question arises upon section 11 of chapter 876 of the Laws of 1869, which contains the following provision: "And the common council, or any head of department of the city of New York, are hereby prohibited from creating any new office," "except as provided by acts passed by the legislature.' We see no reason to doubt that the plaintiff was an officer. duties were those pertaining to an office. He was required by ordinance to take, and did take, the official oath; and he was amenable to all the penalties of statute for neglect or violation of official duties. Probably the true test to distinguish officers from simple servants or employes, is in the obligation to take the oath prescribed by law. But we are of opinion that his appointment was not the creation of a "new office," within the meaning of the prohibition contained in the act of 1869. The office of clerk and of deputy clerk, was an existing and old one. The number of deputies was not prescribed by law. It might be more or less, according to the exigencies of business, and was to be regulated by ordinances of the common council, which must be presumed to be passed with a view to such exigencies. The legislature, by the charter of 1857, gave authority to the clerk of each board of the common council, to appoint and remove deputy clerks in his departments, to the number authorized by ordinance.* But, if the appointment of an additional deputy clerk, when authorized by ordinance, would be in a certain sense "creating a new office," it seems to us the exception in the act of 1869, prevents our regarding it as falling within the prohibition. The restriction is upon the creation of a new office, "except as provided by acts passed by the legislature." The act of 1857, above referred to, empowered the clerk to appoint deputies to the number authorized by ordinance of the common council, and the exception was probably inserted to prevent the prohibition attaching to restrain the addition of such deputies as the law expressly authorized, when the common council should adjudge such addition to be necessary. Besides, the appointment of plaintiff seems to be authorized under the charter of 1870. * Laws of 1857, chapter 446, section 36. HUN-VOL. III. 86 FIRST DEPARTMENT, MARCH TERM, 1875. Section 19 of that charter provides, that "the clerk of each board shall appoint or remove, at his pleasure, deputy clerks in his department, not to exceed the number now authorized by law or ordinance." The ordinance authorizing the appointment of an eighth assistant, was passed February 7, 1870. The charter was passed April 5, 1870. The plaintiff was appointed June-15, 1870. Unless we regard the ordinance of February 7, 1870, authorizing the appointment of an additional assistant, as an absolute nullity, the appointment of plaintiff came within the number which the clerk could appoint under the charter of 1870. We think the judgment should be affirmed. DANIELS and BRADY, JJ., concurred. Judgment affirmed. THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, RESPONDENT, v. WILLIAM M. TWEED, APPELLANT. Code, sec. 121- substitution of parties plaintiff — new answer — not allowed. when leave to serve, Under chapter 304, Laws of 1874, providing for the consolidation of the city and county of New York, an order substituting the consolidated corporation for the board of supervisors, in an action commenced by them and then at issue, is proper; and, as the complaint remains precisely the same after as before the order, the defendant is not entitled to serve a new answer, and permission so to do is properly refused. APPEAL from an order continuing this action in the name of the Mayor, Aldermen and Commonalty of the city of New York, and substituting them as plaintiffs. David Dudley Field, Elihu Root, W. O. Bartlett, Dudley Field, Wm. Fullerton, Edward Bacon, for the appellant. E. Delafield Smith and Wheeler H. Peckham, for the respondent. DANIELS, J.: This action was commenced by the board of supervisors of the county of New York, to recover moneys alleged to have been |