4 N.Y.S. 510 | N.Y. Sup. Ct. | 1888
Lead Opinion
Because the case does not show that it contains all the evidence, or all bearing upon the findings of fact sought tobe reviewed, we must
When the evidence was offered to show the expenses incurred in sending Winslow to the trust company to make a demand for the coupon notes, there was no objection taken that the complaint did not sufficiently aver the damages sought to be proven by the witness. Ho such objection can now be heard. Had such an objection been taken at the trial, presumably the court would have allowed the complaint to have been amended, as was allowed in Miller v. Garling, 12 How. Pr. 203. In that case an action was brought to recover the possession of a heifer which was secretly taken from the possession of the plaintiff by the defendant, and it was held .that damages are recoverable for the time spent and expenses incurred by the plaintiff in searching for -the heifer after she was taken by the defendant; and upon the trial an amendment to the complaint was allowed by inserting a claim for such special damages. In Bennett v. Lockwood, 20 Wend. 223, it was held that damages are recoverable “by a bailor for time spent and expenses incurred for searching for property wrongfully taken from the possession of a bailee.” The doctrine of that case has been followed in Wibert v. Railroad Co., 19 Barb. 48, and in McDonald v. North, 47 Barb. 532. In the latter ease, the rule as to the measure of damages in an action of traver is said to be the value of the property taken, with interest, and the court adds, viz.: “ But this rule has many exceptions, and among them is ti.e case where the plaintiff, being the true owner, has been subjected to the loss of time or the payment of money in searching for the property unlawfully taken, in which case a reasonable allowance may be made by the jury for such time and expense, in addition to the value of the property and interest, * * * and a reasonable allowance for the time and expense incurred by the plaintiff in endeavoring to reclaim the property, was a damage immediately proximate to the wrong act of the defendant.” Our attention is called, by the learned counsel for the appellant, to Indemnity Co. v. Flynn, 55 N. Y. 653. There it was said, in an action to recover the possession of personal property, that, “in the absence of any proof that the damages are more or less than the interest on the value, the presumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use.” We see nothing in that case which aids the appellant. And in Allen v. Fox, 51 N. Y. 562, it was said that, in an action to recover the possession of personal property, if it has a usable value, the value of its use during the time of its detention is a proper item of ■damages. We see nothing in that case which aids the argument of the appellant. Accepting, as we must, the findings of fact made by the trial judge, inasmuch as the appellant is not in a situation to have a review of them, we ■are of the opinion that the conclusion of law pronounced upon the findings of fact was correct. The judgment should be affirmed, with costs.
Dissenting Opinion
(dissenting.) This action was against the defendant as receiver of the national Trust Company of the City of Hew York. It was to recover of the defendant the possession of the bonds in question, on the ground that they were unlawfully detained by him. In the complaint it was alleged that the plaintiff owned the bonds; that they came into defendant’s possession; that, upon the plaintiff’s demand, the defendant refused to surrender
Judgment affirmed, with costs.
