Glass v. Hauser
38 Misc. 780
N.Y. App. Term.
1902
Check Treatment
MacLean, J.

In this action by the plaintiff, to recover the value of goods deposited with the defendant, a warehbuseman, excuse offered for failure to return is that the goods were replevied by a marshal, but whether under valid legal process, or whether subsequently applied to the benefit of the plaintiff, does not appear; nor does the record show when the seizure was made or the plaintiff apprised. The excuse, therefore, fails. Roberts v. Stuyvesant S. D. Co., 123 N. Y. 57. But the trial justice upon seemingly insufficient evidence therefor rendered judgment in favor of the plaintiff for $263.05, the plaintiff testifying in one breath to $380.24, and in'the next to $363.05, as the value of the goods, *781and later to $328.24 as their cost. The only evidence of value at the time of demand is as follows: “ Q. Was the value at the time you bought them the same as they are now ? A. Before they were a little more valuable. Q. Did they grow any less in value from the time that you delivered them to the defendant until now? A. Xow they are worth less money now. Q. At the time you did ask them for it they were worth the same ? A. Tes.”

This, with the other statements by the plaintiff, may not be said to furnish a basis for the amount of the judgment as rendered- For this reason the judgment should be reversed and a new trial ordered.

Freedman, P. J., and Gildebsleeve, J., concur.

Judgment reversed and new trial ordered, with costs, to abide event.