31 Misc. 175 | City of New York Municipal Court | 1900
The only question litigated upon the trial was the question of damages, and it is urged upon this appeal that errors were committed on the trial in the admission of testimony showing loss of profits. The complaint alleged that the plaintiff became unable to attend to his occupation and earn his usual compensation and profits. The plaintiff was a boss painter and had other men working for him, sometimes working alone. He testified that he worked himself as well as directing his men before the accident, and sometimes worked alone; that working alone he made from three dollars to fifteen dollars a day, and that as a boss painter his profit was from ten dollars to fifty dollars a week. That his busy months were May, June and July. That for the first two weeks of the month preceding the accident he made fifty dollars per week, and that he had other work down to the time of the accident and was personally working on the job on the very day of the accident. During his examination the plaintiff was asked the following questions: “ Q. What did these profits amount to upon the average? [Objected to as incompetent, immaterial and improper, and as being too remote and speculative. Objection overruled. Exception.] Q. What did these profits amount to during your busy season; or rather say what they were in June and July of the previous year? [Objected to; overruled and exception.] A. My profit was $800. Q. Eor those two months, June and July? [The answer to this question was stricken out on motion of the defendant’s counsel.] A. Sometimes my profits were $25, sometimes $10, and sometimes $50 per week. [Defendant’s counsel objects and moves to strike out the answer. Motion denied. Exception.] Q. What did you make for these two months, June and July, previous to the accident? [Defendant’s counsel objects to this line of examination.] A. More than $700 profit for these two months, I judge; I employed between 40 and 50 men.” The court charged in relation to this item of damage: “H you believe that these injuries were sustained by the plaintiff and were caused by this collision, and that he was deterred from carrying on his business to the extent he testified to, which he says was yielding him a profit of from three to fifteen dollars per day, you have a right to allow him for such, that is, if you believe it,” and to this part of the charge the defendant excepted and now urges that the court erred in admitting this evidence. It was competent to show that the plaintiff’s business earnings had been from his own personal efforts, that
Hascall, J., concurs.
Judgment and order affirmed, with costs.