119 N.Y.S. 136 | N.Y. App. Div. | 1909
This action was brought to recover the value of certain personal property delivered by the plaintiff to the defendant to be shipped from Providence, R. I., to the city of New York. The complaint alleges that this merchandise was delivered to the defendant, and that the defendant has refused and neglected to deliver the same, the plaintiff claiming the value of the said articles to be $1,837. The answer denies the material allegations of the complaint.
Upon the trial the plaintiff testified to delivering this property to the defendant’s agents at Providence and the failure of the defendant to deliver the merchandise in the city of New York; that the property not delivered consisted of a Persian rug, several suits of
We think this evidence was competent. While it' is true that the cost of an article of personal property is not satisfactory evidence as to its value, if it has been in use it seems to be the best evidence that was available to the plaintiff. No expert who was acquainted with the value of this property and could testify as to its value had seen it, and in consequence of the defendant’s failure
It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin, Laughlin and Scott, JJ., concurred; Patterson, P. J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.