48 Barb. 106 | N.Y. Sup. Ct. | 1865
We cannot reverse the' judgment in this case for any supposed error of the referee in his conclusions of fact. The evidence was conflicting as to whether the defendant gave notice to the plaintiff of the danger of catching his tow line upon the catch of the defendant’s boat. The distinction made by the defendant’s conn
The referee also gives the plaintiff $10 in damages for loss of the use of his horse from Schenectady to Borne. This is put upon the ground that the plaintiff was obliged to tow with three horses until he got to Borne, where he resided, and was delayed thereby one day, “which damaged the plaintiff by this delay to the amount of $10.” • This finding is founded upon the plaintiff’s evidence that he thinks it took him a day longer to come home, which was worth. from $10 to $15. It might, I think, be objected to this evidence that it was a mere estimate, or matter of opinion. But the objection was general, and the question is, whether this damage was recoverable, and ought to have been added to the value of the horse, which was drowned in consequence of the collision. It must be acknowledged that we have no uniform rule of damages to apply to the variety cases in tort which continually come before us for adjudication. The courts in
It does not appear that there- was any necessary damage to the plaintiff in the case at bar growing out of his loss of the use of this particular horse. There is no evidence that he could mot have bought another horse at -Schenectady, and the amount of his damages would then be limited to the value of the one he lost.
I think the legal and natural ■ damages dó not extend beyond this, and that the referee erred in allowing any thing for the use of a horse, which, for aught that appears, the plaintiff could have purchased at Schenectady as well as at Home.
Besides, the allowance of interest on the value of the horse would seem to cover this very item, as it is substantially the same thing whether the plaintiff is allowed for the use of the horse or the money value of the horse. But as the damages can be separated, I think we may affirm the judgment as to the value of the horse with the interest added, and reverse it as to the residue, without costs to either party on this appeal.
■The result is that the judgment must be affirmed as to f> 111.64, and reversed as to $ 10, improperly allowed as damages by the referee for the loss of the use of the horse; without costs of appeal to either party.
Judgment accordingly.
Morgan, Bacon, Foster and Mullin, Justices.]