139 N.Y.S. 999 | N.Y. App. Term. | 1913
The plaintiff has recovered a judgment for damages sustained by reason of a collision between his auto
A judgment for damages must be based upon definite proof, and not upon conjecture. Where an automobile has been injured, the court can award damages for the deprivation of its use while it was in the repair shop only where it is shown that the automobile was used for a business purpose or that another vehicle was hired to take its place. Bondy v. New York City R. Co., 56 Misc. Rep. 602; Foley v. Forty-second St. M. & St. N. R. R. Co., 52 id. 183. There is no claim here that any other vehicle was hired to take its place and the judgment, therefore, must stand or fall upon the proof that it was used in the plaintiff’s business. If damages are awarded because the plaintiff was deprived of the use of the automobile in his business, these damages must of course be based upon an estimate of loss to his business. There is, however, in this case no claim that the business has suffered any loss; in fact it affirmatively appears that the plaintiff suffered no loss in his business, for •he had another automobile which he could use in place of the injured automobile.
It follows that the damages are based upon an erroneous theory, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Seabuby and Page, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.