86 A.D.2d 651 | N.Y. App. Div. | 1982
In an action to recover damages for conversion, the parties cross-appeal from a judgment of the Supreme Court, Kings County (Morton, J.), entered December 29,1980, which, upon a jury verdict, was, inter alia, in favor of plaintiff and against the defendants on the first four causes of action and in favor of defendant Marilyn Dorner and against plaintiff on her first counterclaim. Judgment reversed and case remitted to the Supreme Court, Kings County, for a new trial on the issue of liability as to defendant Frederick Dorner and on the issue of damages as to both defendants, in accordance herewith, with costs to abide the event. In this conversion action, a divorced husband alleges, inter alia, that his former wife and her new husband appropriated and converted his collection of gold and silver coins. On the issue of liability, we find no cause to disturb the jury’s verdict in the main action as against defendant Marilyn Dorner or the verdict of liability and damages on the counterclaims. The verdict of no liability on Marilyn’s second and third counterclaims also need not be disturbed based upon this record. However, the verdict of liability against Frederick Dorner cannot stand. Although the record supports a finding of liability against Frederick Dorner for the conversion of the silver coins (as conceded by counsel), there was a complete failure of proof as to the gold coins. Inasmuch as the verdict of liability was a general, rather than a special verdict, it is impossible to determine whether the jury found Frederick Dorner liable based upon a ground not supported by the evidence. Accordingly, we have no choice but to reverse and remit for a new trial (see Davis v Caldwell, 54 NY2d 176; Killeen v Reinhardt, 71 AD2d 851; Hamilton v Presbyterian Hosp. of City ofN. Y., 25 AD2d 431, app dsmd 17 NY2d 719; see, also, Siegel, New York Practice, § 399). The new trial shall be limited solely to Frederick Dorner’s liability with respect to the silver coins. Furthermore, we hold that the trial court erred in its charge to the jury on the measure of damages to be applied to the conversion of the coin collection and a new trial on the issue of damages is warranted as to both defendants. The general rule of damages in a conversion action is the value of the property at the time and place of the conversion, plus interest (see Fantis Foods v Standard Importing Co., 49 NY2d 317, 326; Jones v Morgan, 90 NY 4, 10). Where, however, the property converted is of fluctuating value, the damages are measured by considering the highest market value within a reasonable time after the plaintiff’s discovery of the conversion (Hartford Acc. & Ind. Co. v Walston & Co., 22 NY2d 672, 673; Baker v Drake, 53 NY2d 211). Gold and silver coins and bullion clearly constitute property with fluctuating value. Such coins are not unique and irreplaceable, however, as are works of art, for which the failure to
