Howard v. McDonough

8 Daly 365 | New York Court of Common Pleas | 1878

Charles P. Daly, Chief Justice.

All that comes up on this appeal are certain exceptions taken as to the admission of evidence.

The' schedule' of the property taken was' made by the witness. It was made immediately after the seizure. It was made, as it then nécessarily had to be, from .the invoice book and the bills ; and being a memorandum made by the witness contemporaneously with the' taking of the property, the witness was entitled to use it to refresh’ his' memory as to a list, of items' which covers nine printed pages of the ease, which no one could, ordinarily, keep in his memory, and could not specify under oath without the aid of such a schedule of the items as this, made immediatély after the seizure of the property. But for the making, at the' time,- of such an enumeration of the very large number of small items, and the use of the written memorial by the wi'tnéss when called upon to prove what was taken, it would, in such a case, be impossible for a party to show what had been taken from him by the seizure.

I do not understand that the schedule was admitted in evidence to prove the items apart from the testimony of the witness. The witness swore that each and every article contained in that schedule, except two which he specified, were in the plaintiff’s place of business when the marshal came, levied and took possession of the property; and where every item in the schedule has been thus distinctly proved, the schedule is receivable for reference, in connection with the witness’ testimony, which is all the effect it had, or could possibly have, in this case. 'Being a memorandum made by the witness embracing a very large number of small items, with the price or value of each, consisting- of the contents of a printing establishment, it could be received in evidence to show what was in the printing establishment when the contents of it were seized, having been honestly made from the invoices and bills immediately after the seizure ; the witness being unable at the time to recollect the items, and the memorandum being then the only and very best means of ascertaining what was taken. (Halsey v. Sinsebaugh, 15 N.Y. 485 ; McCormick v. The Penn. Central R. R. Co., 49 Id. 315.)

It was certainly competent to show that the property, which consisted of the contents of a printing establishment, was, in the conducting of the plaintiff’s business, worth as much as new materials, with a deduction óf 10 per cent., which was what the question objected to elicited. The measure of damages in such an action is a just indemnity to the party injured for the loss which is the natural, reasonable and proximate result of the act complained of. (Baker v. Drake, 51 N. Y. 211.) It is not what the property taken cost the injured party, nor the highest market value of it, but simply its value. (Ormsby v. The Vermont Copper Mining Co., 56 N. Y. 623 ; King v. Orser, 4 Duer, 131.) And as the property here had been in use in a printing establishment, it was certainly competent in ascertaining its value to show that with a deduction of ten per cent, it was equal in value to new material of the same kind.

The judgment should be affirmed.

Joseph F. Daly, J., concurred.^*

* The judgment here was affirmed by the Court of Appeals, April 9th, 1879.