[225 N. Y.] Opinion, per CARDOZO, J. [Jan., a uniform return. The certainty or uncertainty of the damages must vary, it is said, with the proved conditions of the business. It is true, of course, that the conditions of a business affect the possibilities of proof and thus the measure of recovery. No formula can be framed, regardless of experience, to tell us in advance when approximate certainty may be attained. The rule of damages must give true expression to the realities of life. We do not néed to determine what the plaintiff's rights would be if it were able to establish the uniformities which it asserts. The sufficient answer is that it has failed utterly to establish them. It did succeed in showing that “feature” pictures were more profitable than others. That is, indeed, the proposition to which the bulk of its evidence was directed. The difference, however, was not constant or even approximately constant. It was subject to the widest fluctuation. Quality counts, it seems, with pictures as with plays. But the plaintiff did not prove its damages by proving the superiority of feature pictures. The defendant was ready to supply feature pictures. They could have been obtained also, for all the evidence shows, from others. The comparison must be between feature pictures of the first run and feature pictures of later runs. The jury were so charged. They were charged that the plaintiff was "limited to the difference in value between first-run feature pictures and second or third-run feature pictures, and not to the difference between feature pictures and other pictures." But there is nothing in the evidence to supply a basis for the comparison. No law of averages, no constant or approximate uniformity of returns, can be gathered by induction from the sporadic and varying instances scattered through this record. The pictures of the first run are few in number. They disclose no semblance of equality in their returns when compared with one another. They disclose a 1919.] Opinion, per CARDOZO, J. [225 N. Y.] like diversity when compared with pictures of later runs. In this business, as in others, there are times when merit triumphs over novelty. Pictures acquire in one neighborhood a vogue that follows them into another. The indifferent show succeeds by force of the reputation of the actor. The results have all the endless variety of human tastes and fashions. To discover beneath these vagaries a unifying law of averages would be a task in any case. The task is hopeless here where only one day a week is covered by the contract. The plaintiff tries to avoid the difficulty by attributing to the defendant all the losses of the business from one week-end to another. The fanciful theory is advanced that the public will flock to poor shows on six days of the week if there is a good show on the seventh. There can be no stable foundation for a verdict that is built on such assumptions. Nothing but guesswork can place the damages at $4,500 or any other fixed amount. In these circumstances, there was error in the denial of the defendant's motion to strike out the evidence of the profits and losses of the business. It had been received under objection, and had no place in the record unless connected with the breach. The plaintiff was not required to prove its damages to the dollar (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205). It was required, however, to supply some basis of computation (Bernstein v. Meech, supra; Todd v. Keene, 167 Mass. 157; Cramer v. Grand Rapids Show Case Co., 223 N. Y. 63); and this it did not do. There were other errors of a like nature. Experts were permitted to show their experience in other theatres. They told how profits had risen fifty per cent when firstrun pictures were exhibited to the exclusion of all others. These theatres were in other sections of the city. They were run under different conditions of competition, with rival houses across the street. Their display of first-run [225 N. Y.] Statement of case. [Jan., pictures was daily. Only once a week were such pictures exhibited by the plaintiff. The comparison was misleading, and the admission of the evidence erroneous (Todd v. Keene, supra; Moss v. Tompkins, 69 Hun, 288; affd., 144 N. Y. 659). The judgment should be reversed, and a new trial granted, with costs to abide the event. HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, POUND and ANDREWs, JJ., concur. Judgment reversed, etc. JAMES M. SCHLEY, JR., Appellant, v. MORNA C. ANDREWS, Respondent. Judgment—public policy - judgment confessed in favor of defendant to induce her to procure a divorce from plaintiff such judgment is against public policy and illegal and cannot be enforced. This action was brought to enjoin the collection of so much of a judgment as remains unpaid and for other relief. The plaintiff, in order to induce the defendant to procure a divorce, which was thereafter obtained, entered into an agreement by which he stipulated among other things that he would confess judgment for a substantial sum as collateral security for the payment of certain moneys to be paid by him from time to time for her support. After making several payments plaintiff refused further to carry out the agreement, defendant having in the meantime remarried. Thereupon she entered judgment upon the confession which she is taking proceedings to collect. Held, that the agreement and confession were illegal. (Domestic Relations Law [Cons. Laws, ch. 14], sec. 51.) They constituted a fraud upon the law, were against public policy, and could not be enforced by legal process, and judgment entered upon the confession occupies no better position. The general rule is that the action being in equity, and each of the parties being equally at fault, they should be left where the court finds them, but it applies only to contracts which have been fully performed. It does not apply where the contract remains in whole or in part executory since the agreement, confession and judgment must be considered together. The invalidity of one involves the invalidity of the others. In so far, 1919.] Points of counsel. [225 N. Y.] however, as performance has been had the general rule should be applied, and the parties left where the court finds them, but to the extent that the judgment has not been collected, the court should interfere and prevent the arrangement being further consummated by the collection of the judgment. Schley v. Andrews, 171 App. Div. 952, reversed. (Argued October 21, 1918; decided January 7, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 27, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. Frederic R. Coudert and Howard Thayer Kingsbury for appellant. The agreement of September 1, 1911, and the confession of judgment securing it were illegal and void. (Lake v. Lake, 136 App. Div. 47; Wolkovisky v. Rapaport, 216 Mass. 48.) The appellant is entitled to relief so far as the contract is still executory. (Code Civ. Pro. § 1277; G. P. & R. Mfg. Co. v. Mayor, etc., 108 N. Y. 276; London & S. W. Bank, Ltd., v. White, 162 App. Div. 739; 212 N. Y, 594; Jaffray v. Saussmaa, 52 Hun, 561; 117 N. Y. 648; Nat. Park Bank v. Salomnn, 23 N. Y. S. R. 566; Carey v. Grant, 59 Barb. 574; Schank v. Schuchman, 212 N. Y. 352; Trebilcox v. McAlpine, 62 Hun, 317; Clark v. Scovill, 198 N. Y. 279; McCall v. McCall, 54 N. Y. 541; Matter of City of Buffalo, 78 N. Y. 362.) The appellant is in truth and substance in the position of a defendant objecting to the abuse by the respondent of the court's process. (Richardson v. Crandall, 48 N. Y. 348; Gray v. Hook, 4 N. Y. 449; Dewitt v. Brisbane, 16 N. Y. 508; Fields v. Brown, 188 Ill. 111; Given's Appeal, 121 Penn. St. 260; Heath v. Cobb, 17 N. C. 187.) [225 N. Y.] Opinion, per MCLAUGHLIN, J. [Jan., Herbert Noble for respondent. Plaintiff was properly denied relief, as he came into a court of equity with unclean hands. (Lake v. Lake, 136 App. Div. 50; Creath v. Sims, 46 U. S. 192; Harms v. Stern, 231 Fed. Rep. 648; Fay v. Lambourne, 124 App. Div. 245; Smith v. Rowley, 66 Barb. 502.) Appellant cannot attack the validity of the judgment or the sufficiency of his statement in the confession upon which the judgment was entered. (Nusbaum v. Keim, 24 N. Y. 325; Frost v. Koon, 30 N. Y. 428; Union Bank v. Bush, 36 N. Y. 631; Harrison v. Gibbons, 71 N. Y. 58.) The judgment against plaintiff and in favor of defendant is an executed contract. (Gutta Percha & R. Mfg. Co. v. Mayor, 108 N. Y. 276.) MCLAUGHLIN, J. This action was brought to enjoin the collection of so much of a judgment as remains unpaid and for other relief. The parties were formerly husband and wife. Unhappy differences having arisen between them, the plaintiff, in order to induce the defendant to procure a divorce, and if she did so to provide for her support, entered into an agreement by which he stipulated if she would procure a divorce he would pay her $200 per month during her life; that he would have his life insured in the sum of $20,000, payable to her upon his death in case she had not in the meantime again married; and as collateral security for the payment of the $200 per month he would confess judgment for $35,000. Defendant procured a divorce and thereafter the agreement, confession of judgment and policy of insurance were delivered to her. After making several payments he refused further to carry out the agreement, she having in the meantime remarried. Thereupon she entered judgment upon the confession for $35,017.87, which according to the findings she threatens and is about to take proceedings to collect. Such threat she has already put into effect, according to a statement in respondent's |